TMI Blog2021 (3) TMI 1200X X X X Extracts X X X X X X X X Extracts X X X X ..... W DELHI ] dated 14th September, 2020 the ratio of the judgment is applicable in the facts of this case and this case is squarely covered by the aforesaid judgment. At this stage the plea of the Appellant is that the Application under Section 7 of the IBC is barred by limitation, cannot be sustained in the eye of law. The Appellant has failed to demonstrate that the impugned order suffers from any legal infirmity - Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 625 of 2020 - - - Dated:- 26-3-2021 - Justice Anant Bijay Singh, Member (Judicial) and Dr. Alok Srivastava, Member (Technical) For Appellant: Mr. Abhijeet Sinha and Mr. Saikat Sarkar, Advocates. Mr. Pawan Kumar Agarwal. For Respondent: Mr. Kunal Tandon, Ms. Megha Tyagi, Ms. Smriti Churiwal, Mr. Jaivir Sidhant and Mr. Vinay Tibrewal, Advocates for R-1. Mr. Kamal Nayan Jain, Advocate for R-2 (RP). Mr. Varun Gupta, Advocate. JUDGMENT The instant Appeal Company Appeal (AT) (Insolvency) No. 625 of 2020 preferred by Pawan Kumar Agarwal, Suspended Director of Raigarh Properties Pvt. Ltd. against the order dated 27.02.2020 in C.P. (I.B.) No. 432/KB/2019 passed by Adjudicating Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall not be terminated, suspended, or interrupted during moratorium period. vi. The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. vii. The order of moratorium shall have effect from the date of admission till the completion of the CIRP. viii. Provided that where at any time during the CIRP period, if the Adjudicating Authority approves the resolution plan under subSection (1) of Section 31 or passes an order for liquidation of corporate debtor under section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. ix. Necessary public announcement as per section 15 of the IBC, 2016 may be made. x. Mr. Kamal Nayan Jain, IRP Registration No. IBBI/IPA-001/IPP00029/2016-17/10065 is appointed as Interim Resolution Professional for ascertaining the particulars of creditors and convening a Committee of Creditors for evolving a resolution plan. xi. The Financial Creditor to pay a sum of ₹ 3,00,000/- to IRP as advance fees as per Regulation 33(3) of IBBI (Insolvency Resolution Proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Settlement Package, sent a letter dated 23rd July, 2015 to the Respondent No. 1, inter alia, detailing out the reasons for the default in payment of the outstanding dues and further requesting for rescheduling of the outstanding amount payable by them as per the Term Sheet dated 21st March, 2013. vii) The Respondent No. 1 rejected the said proposal of Mohan Jute Mills Ltd. vide letter dated 9th November, 2015 without providing any reasons for the same. viii) Again on 5th April, 2016, Mohan Jute Mills Ltd. sent a letter to the Respondent No. 1 proposing a revised proposal for rescheduling of the outstanding dues. However, the said proposal was rejected by the Respondent No. 1 vide letter dated 7th April, 2016. ix) Pursuant to the letter dated 5th April, 2016 the Respondent No. 1 sent a Letter / Notice dated 20th May, 2016 calling upon the Appellant to pay the outstanding amount of ₹ 9,71,79,501/- x) However, on account of purported failure of the Appellant to repay the outstanding amount, the Respondent No. 1 filed Application under Section 7 of the IBC seeking initiation of CIRP in respect of the Appellant-Corporate Debtor and the impugned order was pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to this application. 7. It is further submitted that the Section 18 of the Limitation Act by its very nature is adversarial and since proceedings under the Code are aimed at protecting the interests of the Corporate Debtor therefore the principles of Section 18 of the Act cannot be made applicable for the purposes of the IBC. 8. It is further submitted that OTS / Settlement Offer(s) cannot be considered as acknowledgment of debt. The alleged acknowledgement of debts were issued on: i) Prior to Assignment of Debt: on 29th November, 2011 (page 17 of the Convenience Compilation, Page 291, Vol-II of the Appeal Paper Book) and 23rd July 2012 (page 18-19 of Convenience Compilation, page 292 Vol-II of Appeal Paper Book). ii) Post Assignment of Debt: on 23rd July, 2015 (page 77-82 of Convenience Compilation: page 304, Vol-II of the Appeal Paper Book), 14th August, 2015 (page 83-88 of Convenience Compilation: page 310 Vol-II of the Appeal Paper Book), 1st September, 2015 (page 89-94 of Convenience Compilation: page 316, Vol-II of Appeal Paper Book) and 5th April, 2016 (page 95-98 of Convenience Compilation: page 323, Vol-II of the Appeal Paper Book). Pertinently, these O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was extended to Raigarh Properties Private Limited Appellant and fresh agreement was executed between the Principal Lender- Union Bank of India and Raigarh Properties Private Limited - Appellant on 19.01.2010. 13. It is further submitted that on 1st September, 2012 the Appellant Corporate Debtor offered to settle the account with the Principal Lender- Union Bank of India and vide letter dated 29.11.2011 (Annexure -A/2 at page 291 of the Appeal Paper Book, Vol-II) it was agreed between the parties with the Appellant which pay ₹ 27,50,00,000/- subject to the other conditions mentioned in the letter. 14. It is further submitted that the Appellant despite specifically agreeing to pay the amount under the settlement, miserably failed to comply with the terms of settlement and further on 10.07.2012 and 23.07.2012 respectively requested the Principal Lender- Union Bank of India for modification of the conditions of said settlement. The letter dated 23.07.2012 is marked as Annexure- 2 at page 292, Vol.-II of the Appeal Paper Book. 15. It is further submitted that on 30th July, 2012 the Principal Lender- Union Bank of India informed the Appellant - Corporate Debtor wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07.2018. The aforementioned letters are part of Annexure-A/2 Vol-II, at pages 304 to 309 of the Appeal Paper Book. 21. It is further submitted that again on 14.08.2015 a similar letter referring to the Term Sheet dated 21.03.2013 and also referring the discussions held on 06.08.2015 with the Respondent No. 1 was sent requesting for the reschedulement of payment. The Appellant - Corporate Debtor again acknowledged its liability and the revised the proposal by offering upfront payment of ₹ 1,00,00,000/- subject to the sanction of the proposal. 22. It is further submitted that the Appellant - Corporate Debtor requested for a moratorium of 12 months on the balance capitalized interest and principal amount from 01.08.2015 and also the Corporate Debtor proposed for 8 equal quarterly instalments for repayment starting from 31.10.2016 till 31.07.2018. The aforesaid letters form part of Annexure-A/2 at pages 310 to 315, Vol-II, of the Appeal Paper Book. 23. It is further submitted that though a letter dated 1st September, 2015, the Appellant-Corporate Debtor referring to term sheet dated 21.03.2013 and the discussions held on 06.08.2015 requested the Respondent No. 1 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Guarantors to the loans including the Appellant. 28. It is further submitted that on 28th February, 2019 the Respondent No. 1 computed the total dues of the Corporate debtor which came to be ₹ 42,33,36,044/- payable by the Corporate Debtor to the Respondent No. 1 and informed the same to the Corporate Debtor which is at pages 247 to 249, VolII of the Appeal Paper Book. 29. It is further submitted that as the payments failed to pay the outstanding dues only on 13.03.2019 the Respondent No. 1 filed Application under Section 7 of the IBC before the Adjudicating Authority, in view of the acknowledgement of debt dues made by the Appellant, it is not correct to say that the debt of the Respondent No. 1 is time barred. 30. Learned Counsel for the Respondent No. 1 while referring to Application under Section 7 of the IBC, wherein Part-IV particulars of the financial debt is mentioned as 28.02.2019, further submitted that the Application under section 7 of the IBC was filed within the period of limitation, so in view of the judgment of Hon'ble Supreme Court of India reported in 2020 SCC OnLine SC 647 BABULAL VARDHARJI GURJAR V/s. VEER GURJAR ALUMINIUM INDUSTR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant would amount to an acknowledgment of the liability to M/s. Prayagchand Hanumanmal within the meaning of section 18 of the limitation act, 1963 and extend the period of limitation for the discharge of the liability as debt. Section 2(47) of the Act defines transfer in relation to a capital asset under clause (i) the sale, exchange or relinquishment of the asset or (ii) the extinguishment of any right thereof (Clauses (iii) to (vi) are not relevant hence omitted). Unfortunately, the assessee did not bring on record the necessary material fact to establish that he became owner by any non-testamentary instrument acquiring right, title and interests in the plant and machinery nor the point was argued before the High Court and we do not have the benefit in this regard either of the Tribunal or of the High Court. In this view We decline to go into the question but confine to the 1st question and agree with the High Court answering the reference in favour of the revenue and against assessee that the appellant is not entitled to the development rebate u/s 33(1) of the Act. The appeal is accordingly dismissed with costs quantified at ₹ 5,000. 27. In the judgeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Besides this, an acknowledgement is to be an acknowledgement of debt and must involve an admission of subsisting relationship of debtor and creditor; and an intention to continue it and till it is lawfully determined must also be evident as per decision in Venkata V. Parthasarathy 16 Mad page 220. An acknowledgement does not create a new right. In the aforesaid judgment this Appellate Tribunal further held in paras 31 and 32 as follows: 31. The judgement was passed in OA 470 of 2017 (filed on 18.08.2017 by the 1st Respondent / Bank) on 18.2.2019, directing the defendants 1 to 3 therein to pay the dues within two months from the date of judgement etc. and in fact the relief sought for by the 1st Respondent / Bank in the said application praying for issuance of recovery certificate to the tune of ₹ 19,25,81,173.31 only together with interest at 13.20% p.a. with monthly rests and costs was granted etc. 32. It transpires that Director of the 2nd Respondent / Jason Dekor Pvt. Ltd. had confirmed the correctness of the balance of ₹ 14,34,42,101.00 dated 15.10.2013, on 01.11.2013 and over the revenue stamp had affixed his signature. Likewise, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this judgement, had given the date of Default / NPA as 01.01.2016 and that the Section 7 of the application of I B Code was filed before the Adjudicating Authority 01.04.2019, by the 1st Respondent / Bank. Prima facie, the Appeal needs to be allowed, if this is the single ground. However, in the instant case, the 1st Respondent/Bank had obtained balance confirmations certificate, the last one being 31.03.2017 as mentioned elaborately in Para 20 of this judgement. Although, this Appellate Tribunal had held in Rajendra Kumar Tekriwal Vs. Bank of Baroda in Company Appeal (AT) (Ins) No. 225 of 2020 and in Jagdish Prasad Sarada Vs. Allahabad Bank in Company Appeal (AT) (Ins) No. 183 of 2020, (both being three Members Bench) had taken a stand that the Limitation Act, 1963 will be applicable to all NPA cases provided, they meet the criteria of Article 137 of the Schedule to the Limitation Act, 1963, the extension of the period can be made by way of Application under Section 5 of the Limitation Act, 1963 for condonation of delay; however, the peculiar attendant facts and circumstances of the present case which float on the surface are quite different where the 1st Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that the date of default i.e. 01.01.2016 gets extended by the debit confirmation letters secured by the 1st Respondent/Bank from the Corporate Debtor (for making a new period run from the date of debit confirmation letters) towards the outstanding debt in Loan Account . Indeed, the application under Section 7 of the I B Code, 2016 was filed by the 1st Respondent/Bank on 01.04.2019 before the Adjudicating Authority within the period of Limitation. Furthermore, in view of the fact, that ingredients of Section 18 of the Limitation Act, 1963 are quite applicable both for Suit and Application and the debit confirmation letters in the instant case were duly acknowledged in accordance with Law laid down on the subject, the instant Appeal deserves to be dismissed and accordingly the same is dismissed, since no legal infirmities have been found in the impugned order passed by the Adjudicating Authority in admitting CP No. (IB) 257/7/NCLT/AHM/2019 and declaring moratorium etc. Resultantly, all connected Interlocutory Applications are closed. There shall be no order as to costs. 32. It is further submitted that the facts of this case is squarely covered by Judgment of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pectively requested the Principal Lender- Union Bank of India for modification of the conditions of said settlement. e) It is admitted that on 30th July 2012 the Principal Lender- Union Bank of India informed the Appellant with request for modification in condition of settlement proposal dated 02.07.2012 has been accepted. f) It is admitted that on 31.12.2012 an Assignment Agreement (at pages 114 to 139, Vol-I of the Appeal Paper Book) was executed between the Principal Lender- Union Bank of India and Respondent No. 1 Asset Reconstruction Company (India) Limited whereby Principal Lender- Union Bank of India assigned the loan granted to the Corporate Debtor in the year 2010 along with other loans. g) It is admitted that vide letter dated 21.03.2013 sent by Respondent No. 1 Asset Reconstruction Company (India) Limited to Mohan Jute Mills Ltd. informing that proposal for restructuring the scheme of Mohan Jute Mills Ltd. and Raigarh Properties Pvt. Ltd. have been approved and terms sheet dated 21.03.2012 was drawn between the Respondent No. 1 Asset Reconstruction Company (India) Limited, Mohan Jute Mills Ltd. and Raigarh Properties Pvt. Ltd. which is at Annexure A/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re dues are settled i.e. from September, 2018 and thereafter. The letter sent by the Appellant in this regard is at Annexure- A/2, Vol-II, Pages 323 to 326 of the Appeal Paper Book. m) It is admitted that the Corporate Debtor failed to make any payment and only 20th May, 2016 the Respondent No. 1 issued a recall notice for an outstanding dues of ₹ 26,61,47,046/-. n) It is admitted that on 20.02.2019 the Respondent No. 1 computed the total dues of the Corporate Debtor which came to ₹ 42,33,36,044/- and informed the Corporate Debtor through letter which is part of Annexure- A/2 Vol- II, pages 247 to 249 of the Appeal Paper Book. o) In view of the categorical acknowledgement by the Corporate Debtor, acknowledging the dues and making requests for the rescheduled the payment of the instalments, we are of the clean opinion that in view of the Judgment of this Appellate Tribunal (supra) dated 14th September, 2020 the ratio of the judgment is applicable in the facts of this case and this case is squarely covered by the aforesaid judgment. At this stage the plea of the Appellant is that the Application under Section 7 of the IBC is barred by limitation, cannot be su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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