TMI Blog2023 (1) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is essentially a mixed question of law and facts and when a party seeks application of any particular provision for extension or enlargement of the period of limitation, the relevant facts are required to be pleaded and requisite evidence is required to be adduced. The benefit of Section 14 was extended because prima facie it was proved that proceedings under SARFAESI Act were without jurisdiction. Present is not a case where it is even contended that winding up petition filed by the Appellant before the Kolkata High Court were without jurisdiction proceeding or were terminated by the defect of a like nature. The proceedings benefit of which is sought to be claimed, it has to be proved that proceedings are prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature is unable to entertain it. Present is not a case where winding up petition filed in the Kolkata High Court was suffering from any defect of jurisdiction or other cause of a like nature. The foundational fact for taking benefit of Section 14 of the Limitation Act being not laid down by the Financial Creditor, no benefit under Section 14 can be claimed by the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Debtor Company from Sharda Group and agreement dated 01st March, 2016 was entered which enumerated and disclosed all loans acquired by the Corporate Debtor Company as outstanding in its books as on 1st March, 2016. The loan claimed by the Financial Creditor was not disclosed in the agreement. The balance sheet of the Corporate Debtor ending 31st March, 2012 also does not disclose any loan and for three years preceding its acquisition by Rungtas, the Balance Sheet does not reveal any such loan. It was pleaded in the Reply that loan agreement dated 09.04.2011 relied on by the Financial Creditor is a fabricated document. The Loan Agreement does not bear the name of the Corporate Debtor and the rubber stamp of the Corporate Debtor. No proceedings were initiated by the Financial Creditor for loan amount and for the first time in 2017, on 20th November, 2017 Demand Notice was issued. iv. It was further pleaded that claim raised in the Application is barred by limitation as default occurred on 02nd December, 2014 and no demand notice was raised till 20th November, 2017 and the application was filed on 12.02.2018. The Adjudicating Authority heard the Learned Counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 7 Application which is barred by time. With the connivance of Mr. Anoop Sonthalia, the earlier promoter of Corporate Debtor, certain bank documents were obtained by the Financial Creditor on basis of which loan agreement was manufactured, the entries alleging payment of amounts to the Corporate Debtor were only parking entries and in no manner there is any financial debt due on the Corporate Debtor. The Balance sheets of the Corporate Debtor for the year 2011-12 did not disclose any loan by the Financial Creditor nor the balance sheets thereafter for three years preceding the acquisition of the Corporate Debtor by Rungta Group contains any mention of the loan. There is no ledger of the Corporate Debtor or the Bank Documents produced to show the transactions. The amount according to the Appellant became due on 12.09.2014 and for the first time demand notice was issued on 28th November, 2017 to the Corporate Debtor which indicates that there is no genuineness in the transaction. Appellant did not pursue the arbitration proceeding and has also abandoned the winding up proceeding hence is not eligible for any benefit of Section 14 of the Limitation Act. 6. We have considered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally a mixed question of law and facts and when a party seeks application of any particular provision for extension or enlargement of the period of limitation, the relevant facts are required to be pleaded and requisite evidence is required to be adduced. Indisputably, in the present case, the respondent No. 2 never came out with any pleading other than stating the date of default as 08.07.2011 in the application. That being the position, no case for extension of period of limitation is available to be examined. In other words, even if Section 18 of the Limitation Act and principles thereof were applicable, the same would not apply to the application under consideration in the present case, looking to the very averment regarding default therein and for want of any other averment in regard to acknowledgement. In this view of the matter, reliance on the decision in Mahaveer Cold Storage Pvt. Ltd. does not advance the cause of the respondent No. 2. 9. Before the Adjudicating Authority, the Appellant did not bring any material including the details of the winding up petition in its proceedings to claim any benefit of Section 14 of the limitation act, 1963. 10. Learned Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... want to jurisdiction. About 11 months thereafter, while the writ petition filed by the corporate debtor was still pending in the High Court, and the interim stay of the SARFAESI Act proceedings still continuing, the financial creditor initiated the application under Section IBC. 12. Thus in the above case, the benefit of Section 14 was extended because prima facie it was proved that proceedings under SARFAESI Act were without jurisdiction. Present is not a case where it is even contended that winding up petition filed by the Appellant before the Kolkata High Court were without jurisdiction proceeding or were terminated by the defect of a like nature. 13. Learned Counsel for the Respondent has submitted that earlier Company Petition No. 814/2014 filed by the Financial Creditor was dismissed on 28.10.2014 and thereafter Company Petition 957 of 2014 was filed which has been actually abandoned by the Financial Creditor. For taking benefit of Section 14 of the Limitation Act, certain ingredients have to be proved. In the present case we have found that neither there is any averment in Section 7 Application nor there is any material on record before the Adjudicating Authority to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of debt loan in the balance sheet of the Corporate Debtor. When there is no mention of the loan in any of the balance sheets of the Corporate Debtor, the doubt expressed by the Adjudicating Authority about the genuineness of the transaction is not unfounded. 15. We further notice that loan agreement claimed by the Appellant is 09.04.2011 and the resolution of the corporate debtor is subsequent dated 25th April, 2011 wherein it was decided to request the financial creditor for a loan. Loan Agreement filed in the record indicates the interest, there is no claim by the financial creditor that there was any demand made for payment of interest for loan by the Financial Creditor. It is the case of the Corporate Debtor that only notice which was received by the Corporate Debtor was notice dated 28th November, 2017 which was even after three years from date of default as per Financial Creditor itself. 16. Learned Counsel for the Appellant has also relied on the Judgment of Hon ble Supreme Court in Forech India Ltd. Vs. Edelweiss Assets Reconstruction Co. Ltd. Civil Appeal No. 818 of 2018 decided on 22.01.2019. The proposition which was laid down in the above case by the Hon ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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