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TMI Blog2022 (5) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent No. 1. For the Respondent No.2/RP: Mr. Raj Singhania, Advocate for R-2/RP. JUDGEMENT [ Per : Shreesha Merla , Member ( T ) ] 1. Challenge in this Appeal, is to the Impugned Order dated30/10/2019passed by the Learned Adjudicating Authority (National Company Law Tribunal, Kolkata Bench, Kolkata) in C.P. (IB) No.- 683/KB/2019, by which Order, the Adjudicating Authority has admitted the Application filed by 'M/s. Bank of India'/ the 'Financial Creditor' under Section 7 of the Insolvency and Bankruptcy Code, 2016, (hereinafter referred to as 'The Code'), for initiating Corporate Insolvency Resolution Process (CIRP) against 'M/s. AEON Manufacturing Private Limited'/the 'Corporate Debtor'. 2. Briefly put, the facts in the instant c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue amount of Rs.54,32,74,829.91/-. The 'Corporate Debtor' preferred an Application under Section 17(1) of the SARFAESI Act, 2002, on 15/09/2016, which is still pending. It is strenuously argued by the Learned Counsel for the Appellant that the 'date of default' being 30/09/2014, and Section 7 Application having been filed on 24/04/2018, which is beyond the three years of the 'date of default', the Application is 'barred by Limitation'. Learned Counsel placed reliance on the Judgement of the Hon'ble Supreme Court in 'Peacock Plywood Pvt. Ltd.' Vs. 'The Oriental Insurance Co. Ltd.', Civil Appeal No. 5608 of 2006, in paras (36, 38, 39 & 44) in support of his contention that the correspondence made during settlement talks/OTS Proposals will not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC OnLine SC 1255, in support of his arguments. 5. The main point which arises for consideration is whether the Section 7 Application filed by the 'Financial Creditor' is 'barred by Limitation'. 6. The letter dated 02/12/2015 shows that the dues were classified as NPA on 30/09/2014 and the Section 7 Application was filed on 24/04/2018. Admittedly, there was communication and correspondence between the parties wherein several proposals for Restructuring an OTS were attempted. The Restructuring Proposals dated 08/10/2014, 09/10/2014 and 02/12/2014 are on record apart from the OTS Proposals made between the parties on 03/03/2018, 13/03/2018, 11/06/2018, 13/06/2018 and 07/11/2018 and thereafter. However, the Section 7 Application was filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds are used but where the documents do not attract without prejudice privilege. This may be because although the words without prejudice were used, the negotiations were not for the purpose of a genuine attempt to settle the dispute. The most obvious cases are first, where the party writing was not involved in genuine settlement negotiations, and secondly, where although the words were used, they were used in circumstances which had nothing to do with negotiations. Surveyors reports, for example, are sometimes headed without prejudice, although they have nothing to do with negotiations. The third case is, where the words are used in a completely different sense. Thus, in Council of Peterborough v. Mancetter Developments, the documentation w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Limitation is not solely whether the communication initiated between the parties with a view to restructure the loan/OTS Proposals construes 'acknowledgement of debt', but whether the debt acknowledged vide letter dated 19/12/2015 and signed by the Appellants and further whether the amounts reflected in the Balance Sheets tantamounts to 'acknowledgement' as defined under Section 18 of the Limitation Act, 1963. 9. At this juncture, we place reliance on the ratio of the Hon'ble Supreme Court in Dena Bank (Supra) which reads as follows: "138. While it is true that default in payment of a debt triggers the right to initiate the corporate resolution process, and a petition under Section 7 or 9 IBC is required to be filed within the period o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three years, in which case the period or limitation would get extended by a further period of three years." 10. The aforenoted observations made by the Hon'ble Supreme Court clearly establishes that any acknowledgement under Section 18 of the Limitation Act, 1963 within the three years period, of the date of default, extends the date of Limitation giving rise to a fresh period of an additional three years. Further, it is not in dispute that the Financial Statements for the year ending 31/03/2016 reflect the loan amounts owed to the 'Financial Creditor'. The Hon'ble Supreme Court in 'Asset Reconstruction Company (India) Limited' Vs. 'Bishal Jaiswal & Anr.', (2021) 6 SCC 366and also in para 139 of the aforementioned 'Dena Bank' (Supra), has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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