TMI Blog2022 (7) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... [ 2021 (8) TMI 315 - SUPREME COURT ] is squarely applicable to the facts of this case as there is a jural relationship between the Corporate Debtor and the Respondent Bank and there is an acknowledgement of debt vide the OTS dated 27.03.2018, which falls within the ambit of Section 18 of the Limitation Act, 1963. This Tribunal is of the considered view that the OTS proposal dated 01.08.2016 and the subsequent one on 27.03.2018 falls within the definition of the ambit of acknowledgement of debt as envisaged under Section 18 of the Limitation Act, 1963 - Appeal dismissed. - COMPANY APPEAL (AT) (INSOLVENCY) No. 371 of 2020 - - - Dated:- 12-7-2022 - [Justice Anant Bijay Singh] Member (Judicial) And [Ms. Shreesha Merla] Member (Technical) For the Appellant : Mr. Pulkit Deora, Advocate For the Respondent No.1 : Mr. Brijesh Kumar Tamber (Bank of Baroda), Advocate for R-1. For the RP : Mr. Lzafeer Ahmad B.F (RP) JUDGEMENT [ Per ; Shreesha Merla, Member (T) ] 1. Aggrieved by the Order dated 10.01.2020 passed by the Learned Adjudicating Authority, (National Company Law Tribunal, Mumbai) in C.P. (IB) No.- 2617/NCLT/MB/2019, the suspended Director of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2021 in Comp. App. (AT) (Ins) No. 371 of 2020 seeking to take on record some additional documents, which the Learned Counsel for the Appellant has opposed. Vide Order dated 15.12.2021, this Tribunal has observed that the Order in I.A. 455/2021 would be delivered after hearing the parties on merits in the main Appeal. 3. Learned Counsel for the Appellant Mr. Pulkit Deora strenuously contended that the Adjudicating Authority has erroneously relied upon the overruled Judgement Sesh Nath Singh Anr. Vs. Baidyabati Sheoraphuli Cooperative Bank , (2021) 7 SCC 313, wherein Section 14(2) of the Limitation Act was applied and time spent during SARFAESI was excluded from the Limitation period. It is submitted that the date of default is 01.07.2013; that the date of NPA mentioned in the Section 7 Application is 22.09.2013 and the Application 2671/MB/2019 was filed by BoB on 11.07.2019 and as three years Limitation period has expired on 22.09.2016, the Application was barred by Limitation . Learned Counsel in support of his submission placed reliance on the Judgements of this Tribunal in Corporation Bank Vs. SJN Energy Infrastructure Pvt. Ltd. , (2020) SCC Online NCLAT 408, Bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as an NPA. It is held that Section 7 comes into play when the Corporate Debtor comes to default. At this juncture, we find it relevant to reproduce paras 42 and 43 of the Laxmi Pat Surana (Supra) Judgement: 42. Notably, the provisions of the Limitation Act have been made applicable to the proceedings under the Code, as far as may be applicable. For, Section 238-A predicates that the provisions of the Limitation Act shall, as far as may be, apply to the proceedings or appeals before the adjudicating authority, NCLAT, the DRT or the Debt Recovery Appellate Tribunal, as the case may be. After enactment of Section 238-A IBC on 6-6-2018, validity whereof has been upheld by this Court, it is not open to contend that the limitation for filing Application under Section 7 IBC would be limited to Article 137 of the Limitation Act and extension of prescribed period in certain cases could be only under Section 5 of the Limitation Act. There is no reason to exclude the effect of Section 18 of the Limitation Act to the proceedings initiated under the Code. 43. Ordinarily, upon declaration of the loan account/debt as NPA that date can be reckoned as the date of default to enable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 18 of the Limitation Act would come into play every time when the Principal Borrower and/or the Corporate Guarantor (Corporate Debtor), as the case may be, acknowledge their liability to pay the debt. Such acknowledgment, however, must be before the expiration of the prescribed period of limitation including the fresh period of limitation due to acknowledgment of the debt , from time to time, for institution of the proceedings under Section 7 of IBC. Further, the acknowledgment must be of a liability in respect of which the Financial Creditor can initiate action under Section 7 of IBC. 9. Paras 138 to 141 of the Judgment of Hon ble Supreme Court in Dena Bank (now Bank of Baroda) Vs. C. Shivkumar Reddy and Anr. , (2021) 10 SCC 330 are reproduced as hereunder: 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 of the IBC is required to be filed within the period of limitation prescribed by law, which in this case would be three years vide from the date of default by virtue of Section 238A of the IBC read with Article 137 of the Schedule to the Limitation A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the record that vide letter dated 22.11.2018 sent via email and registered post, the Corporate Debtor has addressed to the DGM Bank of Baroda that as per Mutually Agreed Settlement Terms they had so far paid a sum of Rs.3,25,00,000/- and have also deposited a sum of Rs.50,00,000/- in DRT Pune. As the issue is with respect to whether the Application is barred by Limitation , at this juncture, we find it relevant to reproduce the said letter: 11. A brief perusal of I.A. 455 of 2021 shows that the documents required to be taken on record include the copy of the OTS, the copy of the I.A. 1155/2016 filed before the DRT Pune and other letters dated 18.03.2019 addressed to by the Corporate Debtor to the Bank. The main document in these additional documents is the terms of OTS which is not disputed therefore, we are of the considered view that no prejudice would be caused if the said OTS document is taken on record. The other documents relied upon by the Bank is pursuant to the OTS and also a copy of I.A. 1155/2016 which is a public document and we see no substantial reasons not to take these documents on record as they are relevant to the facts of the case. 12. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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