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TMI Blog2022 (12) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 10.03.2021 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench-II) in IB-95/(ND)/2021, the Appellants who are the 'Financial Creditors' preferred this Appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'The Code'). 2. By the Impugned Order, the Adjudicating Authority has dismissed the Application preferred by the 'Financial Creditors' under Section 7 of the Code, on the ground that it is 'barred by Limitation'. 3. Learned Counsel for the Appellant submitted that the Second Appellant M/s. Satsai Finlease Private Limited had agreed to sanction a loan amount of Rs. 1.75 Cr. on 03.10.2014 on terms and conditions reflected in the Loan Agreement. On 22.10.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 'Corporate Debtor' Company for the Financial Year 2019. 6. The Respondent was absent before the Adjudicating Authority despite having been served Notice. Learned Counsel submitted that the Adjudicating Authority has wrongly relied on the Judgement in V. Padmakumar vs. Stressed Assets Stabilisation Fund 2020 SCC OnLine NCLAT 417 in Company Appeal (AT) (Ins.) No. 57 of 2020 decided by this Tribunal on 12.03.2020 and the same was set aside by the Hon'ble Supreme Court. 7. It is the case of the Respondent that the Adjudicating Authority has rightly dismissed the Application as 'barred by Limitation' as the entries in the ledgers and the TDS Certificates do not create or enhance the period of Limitation in favour of the Appellant. 8. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Corporate Debtor' to file Balance Sheet/ Annual Return, which is not the law." 19. In the light of the aforesaid decision, we consider the submission of the applicant and we are of the considered view that the amount shown in the ledger account of the applicant cannot be treated as acknowledgement of debt. Since, the applicant in its part-IV of the Application has admitted that the last payment was made on 28.03.2017 and he also received a part payment on 28.04.2017 whereas the present Application has been filed on 04.02.2021, that is after a period of three years when the right to apply accrues in view of Article 137 of the Limitation Act. Hence, we are of the considered view that the Application is 'barred by Limitation'." 11. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. C. Shivakumar Reddy and Anr. has observed as follows: "114. In Asset Reconstruction Co. (India) Ltd. v. Bishal Jaiswal wherein this Court speaking through Nariman, J. relied, inter alia, on Sesh Nath Singh and Laxmi Pat Surana and held that the question of applicability of Section 18 of the Limitation Act to proceedings under the IBC was no longer res integra. .............................................................................. 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 of Limitation prescribed by law, which in this case would be three years from the date of defau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the debt by the 'Corporate Debtor' before expiry of the period of Limitation of three years, in which case the period of Limitation would get extended by a further period of three years." (Emphasis Supplied) 16. The Hon'ble Supreme Court in Laxmi Pat Surana vs. Union Bank of India Civil Appeal No. 2734/2020 and in Dena Bank (Now Bank of Baroda) vs. C. Shivakumar Reddy Civil Appeal No. 1650 of 2020 has held that if the debt is reflected in the Balance Sheet/ Financial Statements of the 'Corporate Debtor' Company, it is to be construed as 'acknowledgment' under Section 18 of the Limitation Act, 1963. 17. At the cost of repetition, in the instant case it is an admitted fact that the Appellants had disbursed the last tranche of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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