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TMI Blog2021 (5) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Insolvency and Bankruptcy Code 2016 (In short, 'IB Code 2016') r/w Rule 6 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity, 'IB Rules 2016'). 2. The learned counsel appeared on behalf of the Operational Creditor submitted that the Operational Creditor was established in the year 2013 and engaged in the business of supply of steels. On 07.05.2014, Corporate Debtor approached the Operational Creditor for supply of TMT steel items. Out of the total supplies made, invoices were raised. In the application, debt to the tune of Rs. 37,04,830/- including principal amount outstanding Rs. 13,49,758/- and Rs. 23,55,072/- interest outstanding at the rate of 36% per annum is claimed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the authorized signatory of the Corporate Debtor. Further, the Director of the Corporate Debtor is in charge of functioning and management of the day to day affairs of the Corporate Debtor and the Purchase Manager is not legally authorized to do so as shown in Page 63 of the application filed by the Operational Creditor. The Operational Creditor, in collusion with the then Purchase Manager, who without any authority had signed and affixed seal in the alleged ledger without knowledge of the Corporate Debtor and the thus the Corporate Debtor has not acknowledged the debt. It is well established law that the seal and signature of authorized person in ledger maintained by the Operational Creditor is not considered as an acknowledgement as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its books, the confirmation of balances by their Purchase Manager cannot be considered as voidable and hence cannot be invalid. In continuation to the above, the contract was not rescinded and hence sub-section 2 of Section 27 of the Specific Relief Act, 1963 does not permit rescission of the contract and the grounds that it is impliedly ratified. 11. Further, the Corporate Debtor's objection that the Purchase Manager cannot enter or sign the confirmation of balances of its creditors on behalf of the Corporate Debtor and thereby making the entire transaction as invalid ab initio is not sustainable. 12. In this Context, the Learned Counsel for the Applicant relied on Judgement of the Hon'ble Supreme Court in the matter of United B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can ratify the said action of it's officer in signing the pleadings. Such ratification can be express or implied. The Court can, on the basis of the evidence on record, and after taking all the circumstances of the case, especially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer." 13. Heard the submissions made by the Learned Counsel/Authorized Representative for both the parties. The Learned Counsel for the Corporate Debtor sought to rebut the claim as filed by the Operational Creditor on the ground of limitation and further it has also been contended that the alleged confirmation of balance obtained from the Corporate Debtor was done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e confirmation of balance in relation to the accounts of the Corporate Debtor was obtained by the Operational Creditor for the year 01.04.2015, 01.04.2016, 01.04.2017, 01.04.2018 and 01.04.2019 and the present Application which is filed on 29.11.2019 is saved by Section 18 and 19 of the Limitation Act, 1963 and as such it cannot be said that the present Application is barred by limitation. 16. Hon'ble Supreme Court in the matter of Sesh Nath Singh & Anr. vs Baidyabati Sheoraphuli Co-Operative Bank Ltd. and Anr. Civil appeal no. 9198 of 2019. "66. Similarly under Section 18 of the Limitation Act, an acknowledgement of present subsisting liability, made in writing in respect of any right claimed by the opposite party and signed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing against such an Interim Resolution Professional named and disclosures as required under IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 are made within a period of one week from the date of this order. As a consequence of the Application being admitted in terms of Section 9 (5) of the Code, the moratorium as envisaged under the provisions of Section 14(1) and as extracted hereunder shall follow in relation to the Corporate Debtor: (I) That Moratorium is hereby declared prohibiting all of the following actions, namely, (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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