TMI Blog2020 (11) TMI 1056X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 of the reply, which is at page 374 of paper book, it is mentioned that undated cheques were handed over to the petitioner and that is the reasons the date, when the cheques were handed over to the petitioner are not disclosed in the notice. Apart from that, in the case of Yogesh Kumar Jaswantlal Thakkar Vs. India Overseas Bank and Ors [ 2020 (9) TMI 582 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI ] passed by Hon ble NCLAT, where it was held that Section 19 of the Limitation Act is not applicable so far the IBC is concerned. Applicability of Section 18 of the Limitation Act - it is mentioned in the reply dated 18.03.2017 that he is ready to settle the statement of accounts, which amounts to the acknowledgement of debt - HELD THAT:- In part-IV, the date of default is not mentioned. Since the last agreement was executed on 30.06.2013, therefore, the payments on the basis of that agreement must be made within 3 years from the date of last agreement, which was executed on 30.06.2013 and acknowledgement also must have been made within that period. Even if the contention of the petitioner is accepted that reply which was given in response to the legal notice under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.The Associate Agreement of 2008 was valid till June 2012. 4. The Financial Creditor and Corporate debtor again entered into another Associateship Agreement dated 01.07.2012 for procurement of iron ore lumps and sized ore from Barbil and Jagdalpur sectors for commercial trade with the domestic buyers.Thereafter, on 30.06.2013, the Financial Creditor signed and executed an Addendum No. 1 dated 30.06.2013 to the Associateship Agreement dated 01.07.2012 (hereinafter collectively referred to as the Associateship Agreement of 2012 ).The Financial Creditor provided the credit facility under the Associateship Agreement of 2012 to the Corporate Debtor, which was revised to ₹ 16,00,00,000/-. The validity of the Associateship Agreement of 2012 was till 31.12.2014 or till such time as the Associate i.e. the Corporate Debtor fulfills its obligations to the satisfaction of Financial Creditor, whichever is later. 5. According to clause 4 of the Associateship Agreement of 2012, Financial Creditor would finance 75% vale of stocks pledged in its favour. Accordingly, the Corporate Debtor created a pledge of appropriate value in favour of the Financial Creditor by way of executing multi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,00,00,000 10.02.2017 10.02.2017 13.02.2017 Funds Insufficient 000884 4,00,00,000 23.02.2017 23.02.2017 24.02.2017 Funds Insufficient 000885 4,00,00,000 23.02.2017 23.02.2017 24.02.2017 Funds Insufficient Total 16,00,00,000 12. In view of the dishonoured cheques, the Financial Creditor sent a Legal Notice dated 02.03.2017 to the Corporate Debtor under section 138 of Negotiable Instrument Act, 1881 calling upon the Corporate debtor to pay the outstanding amount of ₹ 26,69,23,769/- including the amount of dishonoured cheques. 13. The Corporate Debtor sent reply to the Legal Notice dated 18.03.2017, to the Financial Creditor in which the Corporate Debtor had not disputed the outstanding liability due and payable by them. 14. In view of the stock certificated being provided as per pract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the petitioner has presented four cheques in between 01.02.2017 to 24.02.2017 but all the four cheques were returned on the ground that there are insufficient funds in the account. 23. He further submitted that thereafter legal notice dated 02.03.2017 sent to the Corporate Debtor under Section 138 of the NI Act and in response to that legal notice the Corporate Debtor has sent A reply dated 18.03.2017 and in which, he offer to settle the account. 24. She further submitted that in reply to the legal notice under Section 138 of the NI Act which is at page 370 of the paper book and at page 376 it is mentioned in the reply to the legal notice issued under Section 138 of the NI Act that Corporate Debtor was ready to settle the account, which amounts to the acknowledgement of debt. Since this reply was sent on 18.03.2017 and the present application was filed on 10.06.2020, therefore, the present application is within time and in support of its contention, Ld. Counsel for the petitioner also placed reliance upon the _ decision reported in MANU/NLO341/2020 in the case of Yogesh Kumar Jaswantlal Thakkar Vs. India Overseas Bank and Ors passed by Hon ble NCLAT and in which Hon ble NCL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reply filed by the Corporate Debtor in pursuant to the legal notice issued under Section 138 of the NI Act, therefore, we would like to consider this document at first and we have gone through the reply filed by the Corporate Debtor in response to the legal notice issued under Section 138 of the NI Act and we noticed that at page 376, it is mentioned that Corporate Debtor had proposed for settlement of the account and on the basis of that Ld. counsel for the petitioner submitted that the Corporate Debtor has acknowledged the debt by sending the reply to the Legal Notice issued under Section 138 of the NI Act and we also noticed that in its reply to the Legal Notice issued under Section 138 of the NI Act, in para 6 of the reply, which is at page 374 of paper book, it is mentioned that undated cheques were handed over to the petitioner and that is the reasons the date, when the cheques were handed over to the petitioner are not disclosed in the notice. Therefore, at this juncture, we would like to examine this fact that whether the petitioner has mentioned in its application, the date when the petitioner received the cheque, we have gone through the application and the averments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he balance sheet. 33. Therefore, we are of the considered view that in part-IV, the date of default is not mentioned. Since the last agreement was executed on 30.06.2013, therefore, the payments on the basis of that agreement must be made within 3 years from the date of last agreement, which was executed on 30.06.2013 and acknowledgement also must have been made within that period. 34. At this juncture, we would like to refer the submissions of the petitioner s counsel, who has placed reliance upon the reply to the legal notice dated 02.03.2017, which is much after the 3 years, therefore, even if we accept the contention of the petitioner that reply which was given in response to the legal notice under Section 138 of NI Act will be treated as as an acknowledgement of debt, the same has also been made after three years from the date of execution of last agreement, whereas in view of Section 18 of the Limitation Act, the acknowledgement must be made within the period of limitation. hence, we are unable to accept the contention of the Ld. Counsel for the petitioner that the present application is within time. 35. Since the present application is barred by limitation, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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