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TMI Blog2023 (1) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... umar Jain : This appeal is directed against the order dated 20.08.2021, passed by the Adjudicating Authority (National Company Law Tribunal, Mumbai Bench, Court- III) by which an application filed by the Appellant (Financial Creditor) under Section 7 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') r/w Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rule, 2016 (in short 'Rules') against the Respondent (Corporate Debtor) in respect of an amount of Rs. 1,72,93,199/- was dismissed primarily on the ground of limitation and also raised doubt about the existence of the outstanding debt and default. 2. Shorn of unnecessary details, the case set up by the Appellant is that the Respondent availed a sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objection to the demand notice dated 19.06.2019, this also confirms the oral understanding of rate of interest of 18%." 3. In order to prove that the application is within the period of limitation, the Appellant primarily relied upon the TDS deposited by the Respondent on the amount of interest with the Department of Income Tax for the year ended on 31.03.2015, 31.03.2016 and 31.03.2017 reflected in Form 26AS. However, the Adjudicating Authority found that neither interest was paid by the Respondent w.e.f. 01.04.2016 onwards nor the principal amount and the application filed on 27.01.2020 was barred by limitation as it has to be filed within the period of three years from the date of default. 4. Counsel for the Appellant has submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Appellant is about the part payment of Rs. 10 lakhs, purported to have been made by the Respondent on 27.09.2017, reflected in the ledger. It is also submitted that the ledger is a part of the application filed under Section 7 of the Code and in this regard, reference has been made to Para 6 of the averments made in the application filed under Section 7. 9. In answer, Counsel for Respondent has submitted that no case has been set up by the Appellant in the pleadings that Rs. 10 Lakh was paid towards the part payment of amount in question because of which the period of limitation has again started to run. In this regard, he has relied upon the decisions of the Hon'ble Supreme Court in the case of Babulal Vardharji Gurjar Vs. Veer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edger account was paid by the Respondent towards the part payment of the amount due (in question) in order to extend the period of limitation of three years from the said date i.e. 27.09.2017 specially in the absence of the evidence of any writing in this regard or otherwise an admission of the Respondent who has categorically denied the same in its reply. The Appellant has specifically pleaded about the application having been filed within the period of limitation in Para 8 of the application in which there is no averments in regard to the part payment of Rs. 10 Lakh having been made by the Respondent towards the amount in question. Therefore, second contention of the Appellant in respect of extension of period of limitation is hereby reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the acknowledgement with a caveat or a qualification is not the acknowledgement because it has to be in unequivocal terms. From the perusal of the note, referred to above, it is evident that there is no acknowledgement or acceptance of the debt within that period when the application would have been within the period of limitation because the same is not unequivocal. 14. Thus, in our considered opinion, the Appellant cannot take the advantage of the note for the purpose of brining the application filed under Section 7 within the period of limitation. The contention of the Appellant in this regard as well is hereby rejected. 15. Since, all the contentions of the Appellant have been rejected, having not been found reliable in accordance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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