TMI Blog2021 (5) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... filed with the Reply at Page 177 which is letter from Corporate Debtor to the Andhra Bank dated 05th April, 2016 where there is reference to the OTS Proposal and that the Corporate Debtor proposed to pay the outstanding and due balances as on date of NPA, excluding reversal of interest, penal interest, other charges etc., if any. The Learned Counsel for the Appellant has argued that before the Adjudicating Authority there was only balance sheet of 2016-17 and not the balance sheet of 2017-18 or the balance sheet of 2015-16. These are technical grounds raised. The authenticity of such balance sheets has not been questioned and for technical reasons, we do not think it to be in the interest of justice to ignore such documents. There are no financial debt due and in default was time barred or that Adjudicating Authority committed any error when the Application under Section 7 was admitted - appeal dismissed. - Company Appeal (AT) (Ins.) No. 320 of 2020 - - - Dated:- 27-5-2021 - [Justice A.I.S. Cheema] Member (Judicial)/ The Officiating Chairperson And [Dr. Ashok Kumar Mishra] Member (Technical) For the Appellant : Mr. Krishnendu Datta, Mr. Abhisek Baid and Mr. Mohit Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the Balance Sheet of 2015-16 and other documents. The Application under Section 7 was filed with Part-IV of the Format mentioning date of NPA as 29th June, 2012 and that the particulars were given in Exhibit-D. Securities were referred in Part-V of the Format and particulars of the Financial Contract and Amendments were referred in Para 5 of the Format as well as the narrative in Para 6 of Part 5 with regard to how the transactions has occurred. Certificate under Bankers Book Evidence Act was also filed along with other documents. 3. The Adjudicating Authority after hearing Learned Counsel for both-sides found that there was debt due and default and that the debt was within Limitation and the Application came to be admitted by the Impugned Order. 4. In the Appeal before us, the Appellant claims and it is argued for the Appellant that the Account was NPA since 29th June, 2012. The Respondent Bank and other consortium banks considered the present restructuring of credit facility to the Corporate Debtor however the Respondent Bank took exit from CDR without any cogent reasons and without informing the Corporate Debtor. The Appellant claims that Corporate Debtor did not ack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within limitation and the Adjudicating Authority rightly admitted the Application. 7. Learned Counsel for the Appellant has argued that before the Adjudicating Authority balance sheet only of 2016-17 was filed and not other balance sheets and the foundation was not laid before Adjudicating Authority. 8. We have gone through the matter, it would be appropriate to refer to material documents with regard to dispute of Limitation raised. The Application under Section 7 (Annexure A-2 Page 77) is stated to have been filed before the Adjudicating Authority on 21st May, 2018. It appears that effort at restructuring did not give desired result and the NPA was declared with back date of 29th June, 2012. Thus there are documents on record even subsequent to 29th June, 2012 like Second Amendatory Agreement dated 13th March, 2014. The Application under Section 7 shows Demand Notices being issued under SARFAESI Act on 31st January, 2015 and 19th June, 2016. It appears that O.A. 150/2016 was also filed before the DRT. 9. The Respondent Bank has filed Reply (Diary No. 20697) along with Reply there is document filed at Page 166 of Diary No. 20697 which was sent in response to the SARFAESI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. 10. Apart from these, there are part-payments made on 19th July, 2017 and 25th September, 2017 referred to by the Learned Counsel for the Respondent Bank from Diary No. 20994, at Page 5 and 15. The Learned Counsel for the Respondent Bank submitted that these amounts are part-payments received in the Account of the Corporate Debtor. It is argued that these Accounts were before the Adjudicating Authority and that Adjudicating Authority also relied on the last payment into the Account dated 25th September, 2017 in Para 25 of the Impugned Order. Although the Learned Counsel for the Appellant has argued that the letters dated 23rd March, 2015 and 05th April, 2016 (Page 166 to 177 with Diary No. 20697) were not filed before the Adjudicating Authority and thus it is claimed that foundation was not laid, still we find that the Respondent Bank has produced the documents with the Reply and the Appellant is not denying the authenticity or sending of such letters to the Bank. The argument is only technical that these documents were not filed before the Adjudicating Authority. When authenticity and sending of such letters to the Bank is not disputed, for technical reasons, it does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 as well as the observations of the Hon ble Supreme Court in the matter of A.V. Murthy Vs. B.S. Nagabasavanna reported in (2002) 2 SCC 642. The Learned Counsel for the Appellant has argued that before the Adjudicating Authority there was only balance sheet of 2016-17 and not the balance sheet of 2017-18 or the balance sheet of 2015-16. These are technical grounds raised. The authenticity of such balance sheets has not been questioned and for technical reasons, we do not think it to be in the interest of justice to ignore such documents. 12. The parties have relied on various Judgments to submit whether or not Sections 18 and 19 of Limitation Act would apply and with regard to their submissions as regards limitation of the present Application. In this regard, it would be appropriate to refer to the latest Judgment of the Hon ble Supreme Court of India in the matter of Sesh Nath Singh Anr. Vs. Baidyabati Sheoraphuli Co-operative Bank Ltd and Anr. in Civil Appeal No. 9198 of 2019 delivered on 22.03.2021. In the said Judgment, the Hon ble Supreme court observed in Paragraphs 85, 86, 87, 88 and 92 as under: 85. In the instant case, the proceedings under the SARFAESI Act m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alization of a debt by invocation of the Insolvency Resolution Process. In any case, since the cause of action for initiation of an application, whether under Section 7 or under Section 9 of the IBC, is default on the part of the Corporate Debtor, and the provisions of the Limitation Act 1963, as far as may be, have been applied to proceedings under the IBC, there is no reason why Section 14 or 18 of the Limitation Act would not apply for the purpose of computation of the period of limitation. 92. In other words, the provisions of the Limitation Act would apply mutatis mutandis to proceedings under the IBC in the NCLT/NCLAT. To quote Shah J. in New India Sugar Mill Limited v. Commissioner of Sales Tax, Bihar, It is a recognised rule of interpretation of statutes that expression used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the Legislature . 13. Relying on the above Judgment and Documents as discussed above, we do not find that the financial debt due and in default was time barred or that Adjudicating Authority committed any error when ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
