TMI Blog2021 (8) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... to be 04.03.2020. Part IV of the Format shows that the Respondent Bank had mentioned that Total amount of default as on 04.03.2020 was ₹ 8,44,15,488 . It was specifically mentioned that date of NPA was 28.10.2016. When date of NPA is 28.10.2016 and there is Balance Confirmation as mentioned above of 15.07.2019, the same is within three years. Calculating limitation period from 15.07.2019, Application under Section 7 filed on 28.07.2020 cannot be said to be time barred. When Corporate Debtor is a Company where there are more Directors rather than only one as can be seen from the Balance Confirmation issued by the Company, it does not lie in the mouth of the Corporate Debtor to claim that one Director was suffering from COVID so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Authority as when the matter was filed the Appellant was suffering from COVID and thus could not defend the matter before the Adjudicating Authority. 3. We have then called upon Learned Counsel for the Appellant to demonstrate to us as to what grounds the Appellant has if the Appellant had appeared before Adjudicating Authority. The Learned Counsel submits that the Application filed under Section 7 has supressed the fact that the Financial Creditor had even resorted to proceedings under Section 13(2) of SARFAESI Act and had moved the DRT which proceedings were subsequently withdrawn. It is submitted by Learned Counsel for the Appellant that Financial Creditor had also moved the Commercial Court at Ahmedabad, as can be seen from Annex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther submitted that Principles of Natural Justice require that Appellant is given opportunity to defend. Learned Counsel referred to Para 11 of judgment in the matter of AKJ Fincap Ltd. vs. Bank of India (supra) to submit that this Tribunal had in that matter set aside the concerned order which was passed ex-parte. 4. The Learned Counsel for the Resolution Professional is present and submits that judgment in the matter of AKJ Fincap Ltd. vs. Bank of India was relating to Adjudicating Authority declining to set aside admission order on the basis that the Adjudicating Authority did not have power to set aside its Order of ex-parte Admission. 5. The issue raised before us is that at the stage of admission the Appellant was ex-parte a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that further Balance Confirmation was given on 15.07.2019, which reads as under:- I/we further acknowledge, confirm, record, admit the outstanding balance of ₹ 39764520.36/- (Rupees Three Crore Ninety Seven Lakh Sixty Four Thousand Five Hundred Twenty Rupees Thirty Six Paise only) (exclusive of interest chargeable thereon from 01.09.2016 due as on 11.07.2016 and I/we am/are liable to pay the same to you in accordance with the terms thereof. I/we am/are giving the acknowledgement for the purpose of extending the limitation period under S.18 of the Limitation Act for initiation of legal proceedings by the Bank for of outstanding dates due to the Bank and request the Bank to defer for a short period for the time being at the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and notice was issued on 24.08.2020 and thereafter there were two dates of hearing but still the Corporate Debtor did not appear or file Vakalatnama. When Corporate Debtor is a Company where there are more Directors rather than only one as can be seen from the Balance Confirmation issued by the Company, it does not lie in the mouth of the Corporate Debtor to claim that one Director was suffering from COVID so the Corporate Debtor could not cause appearance before the Adjudicating Authority. Para 7.7 of the Appeal states as under: 7.7 That the impugned proceedings conducted before the adjudicatory authority was ex-parte. It is submitted that appellant herein was under huge financial pressure due to covid and prevailing financial crunch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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