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TMI Blog2023 (10) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... of the I & B (AAA) Rules, 2016, passed by the 'Adjudicating Authority' ('National Company Law Tribunal', Bench - I, Hyderabad). 2. Earlier, while passing the 'impugned order', dated 05.06.2023 in CP (IB) No. 645 / 7 / HDB / 2018, Filed by the '1st Respondent / Financial Creditor / Bank / Petitioner', under Section 7 of the I & B Code, 2016, r/w Rule 4 of the I & B (AAA) Rules, 2016), the 'Adjudicating Authority' / 'National Company Law Tribunal', Bench - I, Hyderabad), among other things, at Paragraphs 20 to 28, had observed the following: 20. "Having anxiously considered the submissions of the Ld. Counsel for both the parties and on careful perusal of the relevant provisions of the IB Code, besides by taking into consideration the well settled legal position in this regard, the submission of the Ld. Counsel for the Corporate Debtor that, the 'default' which is the sine qua non, for setting in motion the application under section 7 of IB Code, the Legislature in its wisdom meant only the "default" that occurred at the first instance and not the extended default, by virtue of acknowledgement of debt or on the basis of entry in the Balance Sheets of the Corporate Debtor, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Applicant. 22. In fact, a similar argument put forth has been out-rightly rejected by the Hon'ble NCLAT in the matter between Koncentric Investments Ltd. Vs. Standard Chartered Bank, London, CA (AT) Insolvency No. 911/2021 dated 27.01.2022, and it was held as under: - "8. .. .. Sr. Advocate appearing for the Respondent No.1 refuting the submissions of Learned Sr. Counsel for the Appellant submits that Facility Agreement dated 22nd May, 2013 was amended by Supplemental Agreement dated 19th August, 2013 and first disbursal of amount was made on 30th August, 2013 hence 27 months period was to expire on 30th November, 2015 and first instalment thus became due only on 30th November, 2015. It is true that interest due on 30th June, 2015 was not paid but not filing Section 7 Application on the ground of default in payment of interest amount shall not take away the right of bank to sue when first instalment became due or when entire loan became due in view of the Acceleration Notice dated 05.01.2017. Section 7 (1) of the Code speaks of Company Appeal (AT) (Insolvency) No. 911 of 2021 default it does not mention first default. To accelerate Financial Facility by the Bank, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Learned Sr. Counsel for the Appellant that there was default when interest was not paid on 30th June, 2015. Now question is as to when a Financial Creditor has not filed the Application on first default i.e. payment of interest whether he is precluded to file Application for subsequent defaults i.e. when default is committed for an instalment or for whole debt when it becomes due." (Emphasis supplied) "21. The Insolvency and Bankruptcy Code including rules and regulations, does not indicate that it is mandatory for the Financial Creditor to rush to file Section 7 Application whenever first default is committed in payment of interest. Although it had liberty to file an application even if there is default in payment of interest. Section 7 (1) of the Code uses the expression when a default has occurred there is no indication under Section 7 of the Code that unless an Application is filed on first default committed, no application can be filed when subsequent defaults are committed. The Financial Creditor is at liberty to file Section 7 Application but is neither mandatory nor necessary that on first default Financial Creditor should rush to the Insolvency Court. Financial Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application." "Thus, for applying the law of limitation on Section 7 Application it is to be seen as to whether the date of default as claimed in the application and payment of debt and debt due is not beyond three years and if the date of default as claimed in the Application is within three years the Application cannot be thrown out as barred by limitation. The mere fact that the Financial Creditor has ignored or not claimed any due which was due three years prior to the date of default as claimed in the Application shall not disentitle the Financial Creditor to claim the debt which was payable within three years from the date of filing. We are conscious of the law as declared by Hon'ble Supreme Court that normally date of default is a date when account of borrower has been declared NPA. When account is declared NPA it is open for the lender to claim for debt and any Application filed beyond three years from the date account became NPA shall be dismissed and barred by time". 24. Hon'ble Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 7 of the Code." 25. To accept the submissions made by Learned Counsel for the applicant, we have to read one additional word under Section 7 before the word 'Default' under Sub-Section 1 of Section 7 of the Code i.e. the word 'First'. The submission of the Appellants is that when first default is committed by a Debtor, the Creditor has necessarily and mandatorily to Company Appeal (AT) (Insolvency) No. 911 of 2021 initiate Application under Section 7 failing which the right of creditor to file an Application under Section 7 of the Code shall be defeated by law of limitation. 26. Hon'ble Supreme Court of India in re Dena Bank v. C. Shivakumar Reddy, at page 144 & 145 held as follows:- "142. To sum up, in our considered opinion an application under Section 7 of the IBC would not be barred by limitation, on the ground that it had been filed beyond a period of three years from the date of declaration of the loan account of the Corporate Debtor as NPA, if there were an acknowledgement 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant, the 'Adjudicating Authority' / 'Tribunal', at the time of passing the 'impugned order', dated 05.06.2023, in CP (IB) No. 645 / 7 / HDB / 2018, had failed to appreciate that the 'Debt', sought to be enforced even by incorporating alleged acknowledgements in the 'Balance Sheets' of the 'Corporate Debtor', was 'Time Barred', in as much as the last acknowledgement, as per the 'Amended Application', under Section 7 was 27.08.2016 and the 'Amended Application', was filed on 17.11.2021 Viz. beyond the statutory period of 3 years. 5. The Learned Counsel for the Appellant, advances a plea that it is a 'trite Law', that the 'amendment', although, properly made cannot 'relate back', to the 'date of filing' of the 'Original Petition', but to the 'date of filing' of the 'amended Application'. 6. The Learned Counsel for the Appellant, takes a stand that the 'cardinal principle of Law', that if an 'amendment made, introduces a different 'new cause of action', based on fresh facts, then, the said 'amendment', cannot possibly relate back to the 'Date of Filing' of the 'Petition', but, to the 'Date of Filing' of the 'Amendment Application'. 7. The Learned Counsel for the Appellant, points ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... looked into by the Adjudicating Authority to hold as to whether the application filed under Section 7 of the Code is within limitation or not. Therefore, we are of the considered opinion that this matter requires a relook by the Adjudicating Authority especially after the amendment has been made in the application filed under Section 7 of the Code to find out as to whether the application filed under Section 7 is within limitation in terms of the alleged acknowledgment of the part of the Respondent by way of the entries made in the balance sheets. 9. In the view of the aforesaid discussion, the appeal is allowed and the order of the Adjudicating Authority is set aside. The matter is remanded back to the Adjudicating Authority to reconsider the amended application, filed under Section 7 of the Code, at the instance of the Appellant. It is needless to mention that the Hon'ble Supreme Court has also given liberty to the Respondent to raise all the issues available to it in order to contest the said application. The said liberty shall remain open. The parties shall appear before the concerned Adjudicating Authority on 11.10.2022." and contends that it is clear, that the 'Doctrine o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Kanoon, wherein, at Paragraph 22, it is observed as under: 22. "A perusal of the aforesaid Sections would show that there is no doubt that the filing of a balance sheet in accordance with the provisions of the Companies Act is mandatory, any transgression of the same being punishable by law. However, what is of importance is that notes that are annexed to or forming part of such financial statements are expressly recognised by Section 134(7). Equally, the auditor's report may also enter caveats with regard to acknowledgements made in the books of accounts including the balance sheet. A perusal of the aforesaid would show that the statement of law contained in Bengal Silk Mills (supra), that there is a compulsion in law to prepare a balance sheet but no compulsion to make any particular admission, is correct in law as it would depend on the facts of each case as to whether an entry made in a balance sheet qua any particular creditor is unequivocal or has been entered into with caveats, which then has to be examined on a case by case basis to establish whether an acknowledgement of liability has, in fact, been made, thereby extending limitation under Section 18 of the Limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the prescribed period for filing the suit, in other words, if the limitation has already expired, it would not revive under this Section. It is only during subsistence of a period of limitation, if any, such document is executed, the limitation would be revived afresh from the said date of acknowledgement....." 19. The Learned Counsel for the Appellant, submits that the 'Date of Default' and the 'Date of Non Performing Asset(s)', are both distinct and different dates. Further, it is represented on behalf of the Appellant that in terms of the 'Reserve Bank of India's Master Circular - Prudential Norms on Income Recognition, Asset Classification and Provisioning pertaining to Advances', dated 01.10.2021, an 'Account', has to be declared as 'Non Performing Asset', minimum 'after 90 days of the Date of Default'. 20. According to the Appellant, 'Default', is under the 'Borrower's control', and that the 'Date of Non Performing Asset', is controlled by the 'Lender Bank', and further, the 'Bank', may declare an 'Account', immediately after 90 days, as per the 'RBI's Master Circular' and since, it is within their control, the 'Bank', may declare the 'Account' as 'Non Performing Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istic person can only act through an "Authorised Representative". Entry 5 & 6 (Part I) of Form No.1 mandates the 'Financial Creditor' to submit "name and address of the person authorised to submit application on its behalf. The authorization letter is to be enclosed. The signature block of the aforementioned Form 1 also provides for the authorised person's details is to be inserted and also includes inter alia the position of the authorised person in relation to the 'Financial Creditor'. Thus, it is clear that only an "authorised person" as distinct from "Power of Attorney Holder" can make an application under section 7 and required to state his position in relation to "Financial Creditor"." 25. The clear cut stand of the Appellant, is that, the 'Adjudicating Authority' / 'Tribunal', had failed to appreciate that there was no authorisation to and in favour of Mr. J. Vijay Kumar, Asst. General Manager, who had signed the 'amended Petition', indeed, the requirement of specific authorisation, is 'mandatory', to prefer an 'Application', under Section 7 of the I & B Code, 2016. 26. The other contention projected on behalf of the Appellant, is that the 'non-mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and ultimately, the 'Corporate Debtor's Account', is declared as 'Non Performing Asset', on 30.04.2013. 31. According to the 1st Respondent / Bank, the 'Corporate Debtor', among other things, furnished various 'One Time Settlement Proposal', on 19.06.2015, 22.09.2017, 03.05.2019, 30.04.2021, 18.03.2021, 14.06.2021 and 26.07.2022, respectively. In fact, the 'Corporate Debtor', was indicating the 'Debt and Default', in their 'Balance Sheets', from the years 2016 to 2020, and added further, the 'Corporate Debtor', had not filed their 'Balance Sheet', after the year 2020, for the years 2021 to 2023. 32. The Learned Counsel for the 1st 0Respondent / Bank, brings it to the notice of this 'Tribunal', that the 1st Respondent / Bank, had initiated 'SARFAESI' and 'Recovery Proceedings', against the 'Corporate Debtor', and because of the continuous default of the 'Corporate Debtor', the 1st Respondent / Bank, in order to bring about a 'Resolution' of the 'Account', had filed a Section 7 Application, under the I & B Code, 2016 and originally, the said 'Application', was 'dismissed', by the 'Adjudicating Authority' / 'Tribunal', on the 'ground of Limitation', and the 'Appeal', was also 'dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut that, in terms of the 'Application' (Filed under Section 7 of the I & B Code, 2016), by the 1st Respondent / Bank / Petitioner, the 'Outstanding Sum' in 'Default', as on 31.08.2018, was Rs.327,03,72,501.81/-, and that the 'Outstanding Sum', claimed by the 1st Respondent / Bank, was Rs.1061.15/- Crores and also the 'Bank' reliably understands that the Total Sum, claimed by all the 'Financial Creditors', is about Rs.3,400/- Crores. 38. The Learned Counsel for the 1st Respondent / Bank, refers to the Verbatim of the relevant portion of the 'Petition / Application' (Part IV - Particulars of Debt, Serial No.2), under Section 7 of the Code (vide Page 265 at Page 275 of Vol. II of the Appellant's Paper Book dated 27.06.2023), which proceeds to the following effect: "The cause of action / date of default would start on 30.04.2013 when the Accounts were declared NPA, in terms of the RBI guidelines due to failed Restructuring. Even subsequent to the declaration of the Account as NPA, the Corporate Debtor has continuously and repeatedly year on year acknowledged and admitted the debt owed to the banks in its balance sheets dated 16.08.2014, 27.08.2015 and 27.08.2016 for the Financial Ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea of the Appellant that the 'Amendment', will only take effect from the 'Date of the Amendment', the 'Order' of the Hon'ble Supreme Court of India, will become a 'meaningless' one. Therefore, it is the stand of the 1st Respondent / Bank, that the 'Doctrine of Relation Back', will 'apply', and in fact, the 'Amendment', granted by this 'Tribunal', on 11.01.2022, can only relate back to the 'Filing of an Application' (dated 06.09.2018, but filed on 12.09.2018, before the 'Adjudicating Authority'). Also, it is the stand of the 1st Respondent Bank that the 'Ordinary Rule', is that, the 'Amendment', will relate back to the 'Original Date of Filing of the Suit'. 44. The Learned Counsel for the 1st Respondent / Bank, to fortify the contention of 'Doctrine of Relation Back', places reliance upon the Judgment of the Hon'ble Supreme Court of India, dated 18.10.2001, in Siddalingamma v. Mamtha Shenoy, reported in India Kanoon (vide Civil Appeal No.7292 of 2001, wherein, it is observed as under: "...... On the doctrine of relation back, which generally governs amendment of pleadings unless for reasons the Court excluded the applicability of the doctrine in a given case, the petition for e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to the question of limitation. It was also held in Ammaya Pillai v. Narayana Chetti, A.I.R. (12) 1925 Mad. 487 : (86 I.C. 187) that the effect of an amendment of the plaint is to date back the suit where no party is added. No party was added in the present case also." 47. The Learned Counsel for the 1st Respondent / Bank, points out that the Appellant, was classified as a 'Wilful Defaulter', by the 1st Respondent / Bank, on 25.03.2019, and further that, the 'Appellant', was also classified as 'Wilful Defaulter', by other two Banks (1) Punjab National Bank and (2) IDBI Bank, and the 'Corporate Debtor', was also declared as 'Fraud', by the 1st Respondent / Bank, on 31.07.2019. 48. The Learned Counsel for the 1st Respondent / Bank, brings it to the notice of this 'Tribunal', that the 'Appellant', is the very same 'Director', who had provided the 'One Time Settlement Proposals', on 19.06.2015, 22.09.2017, 03.05.2019, 30.04.2021, 18.03.2021, 14.06.2021 and 26.07.2022, and that the 1st Respondent Bank, had given a Complaint, before the 'Central Bureau of Investigation', for the 'Fraud', committed by the 'Appellant', which is pending as on date. 49. The Learned Counsel for the 1st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Page 360 of Vol. II of the Appellant's Paper Book dated 27.06.2023 - Notes to the Financial Statements for the Year ended 31.03.2016, wherein, under the Head 'State Bank of India, it is mentioned as 'Second Pari passu Charge', on the following properties for Term Loans: (1) Office space situated at Plot No.21, Sector 1, HUDA Techno Enclave, Madhapur Village Serilingampally Mandal, R R District, admeasuring about 12792 Sq.ft. along with undivided Share of land 383.76 Sq. Yards, out of 2028.65 Sq. Yards and bearing S.Y.No. 64, standing in the name of Centromere Biosolutions Pvt. Ltd. Office space situated at Plot No.21, Sector 1, HUDA Techno Enclave, Madhapur Village Serilingampally Mandal, R R District, admeasuring 12792 Sq.ft. along with undivided Share of land 383.76 Sq. Yards, out of 2028.65 Sq. Yards and bearing S.Y.No. 64, standing in the name of Seed Innovations Pvt. Ltd. (first charge with Axis Bank Ltd.). Exclusive Charge on the following properties for all facilities: (a ) House no-8-2-268/A/16, Sriniketan Colony, Road No.03, Banjara Hills, Hyderabad in the name of Shri. P. Vidyasagar. (b) Plot no.10A, Shree Balaji Colony, Gandhinagar in the name of Shri. P. V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to get instructions from the Central Board or the Local Board to institute an appeal within the period of thirty days." 58. The Learned Counsel for the 1st Respondent / Bank, cites to the decision in State Bank of India v. Earnest Traders Exporters, Importers & Commission Agents : 1997 (41) DRJ 659, wherein, at Page 2, Paragraph 7, it is observed as under: 7. "Thus, any Manager of the plaintiff bank would be fully authorised to sign and verify the pleadings and would also be entitled to institute the legal proceedings, for and on behalf of the bank. In this view I am supported by the decision of the Punjab & Haryana High Court in State Bank of India v. Kashmir Art Printing Press and others, (1983) 54 Comp Cas 56." 59. The Learned Counsel for the 1st Respondent / Bank, refers to the decision in State Bank of India v. Essar Steel India Limited (C.P.No.(IB) No.40/7/NCLT/AHM/2017), wherein, at Page 12, Paragraph 15, it is observed as under: 15. "In the above said two decisions, the Hon'ble High Courts, after considering Regulations 76 & 77 of the State Bank of India General Regulations, 1955 and Gazette Notifications, held that Manager of the Bank could be duly authorised to sign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the 2nd Respondent / IRP, it is brought to the notice of this 'Tribunal' that the 'Total Claims' of both the 'Financial Creditors' and the 'Operational Creditors', comes to Rs.3,473.8/- Crores, which reflects the magnitude of the problem in the 'Corporate Debtor', which is huge and further that the 'Corporate Debtor', is not a going concern and that the 'Manufacturing Operations' of the 'Corporate Debtor', are stopped. 63. It is represented on behalf of the 2nd Respondent / IRP, that the 'Corporate Debtor', had not filed its 'Annual Returns' for the past two years and in fact, the 'Interim Resolution Professional', had sent a mail on 14.06.2023, to the 'Appellant' / 'Suspended Director', with a request, to provide 'documents / vital information', relating to the 'Corporate Debtor', required initially, for the purpose of taking control and custody of the 'Assets' of the 'Corporate Debtor'. Although, the 'Interim Resolution Professional', had sent emails to the 'Statutory Auditors' of the 'Corporate Debtor', requesting the 'Financial Statements', for the Financial Year 2020-21 onwards, along with various 'allied information', he had not received the 'requisite information', ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y an 'Adjudicating Authority' / 'Tribunal', while dealing with an 'Application' (Filed by a 'Financial Creditor', under Section 7 of the I & B Code, 2016). To put it differently, the 'situation / circumstances', under which, a 'Corporate Debtor', could not 'repay', the 'Financial Debt', need not be taken as a 'Defence', in a proceeding, under the 'Code'. 70. The 'Adjudicating Authority' / 'Tribunal', need not wait for the determination, to be made by the 'Debt Recovery Tribunal'. Although, 'Debt', is 'Disputed', if the 'Amount', is more than 'Rs.1 Lakh' ('Rs.1 Crore', after 'amendment', to the 'Code'), the 'Application', under 'Section 7', is 'maintainable in Law'. 71. To be noted, the 'Adjudicating Authority' / 'Tribunal', is not a 'Civil Court', to determine the 'Violation of Contract', between the 'Parties'. A mere dispute, about the 'Quantum of Payment', does not affect the 'Right of a Financial Creditor', to initiate 'appropriate proceedings', under the I & B Code, 2016. Under the Code, the shift is 'inability to pay', to the 'existence of Default'. Merely because a 'Financial Creditor', has approached the 'Debt Recovery Tribunal', for 'an appropriate relief', it cannot be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 482. 78. In Law, an 'Acknowledgement', extends the 'Period of Limitation', as per decision P. Sreedevi v. P. Appu, AIR 1991, Ker 76. No wonder, the 'burden', lies upon the 'Creditor', to establish that an 'Acknowledgement', was made in time, as per decision Gur Saran v. Shib Singh, reported in AIR 1943 ALL 393 (FB). Appraisal: 79. Before the 'Adjudicating Authority' ('National Company Law Tribunal', Bench - I, Hyderabad'), the 1st Respondent / Bank, had filed an 'Application', in CP (IB) No. 645 / 7 / HDB / 2018 (under Section 7 of the I & B Code, 2016, r/w Rule 4 of the I & B (AAA) Rules, 2016), wherein, in Form I, under Part - IV ('Particulars of Financial Debt'), it is mentioned as under: Part-IV PARTICULARS OF FINANCIAL DEBT 1 Total amount of Debt granted Total disbursed amount. Total Debt Granted & Disbursed by State Bank of India Nature of facility by SBI Debt Granted Rs. in crores Debt Disbursed Rs. in crores Cash Credit 79.85 79.85 Corporate Loan 50.00 50.00 Term Loan 1 6.75 6.75 Term Loan 2 47.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.85 Crores dues for Seed Producing Farmers in Gujarat, Telangana, AP, Karnataka and Maharashtra got affected impacting 65,000 farmer families of their livelihood, the Banks (including the Financial Creditor), were bent upon 'liquidating the assets of Corporate Debtor', to recover their dues, which was not even 10% of their dues, leaving farmers' dues, workmen's dues and statutory dues'. 81. In this connection, this 'Tribunal', relevantly points out that the 'Corporate Debtor', in its 'Counter', before the 'Adjudicating Authority' / 'Tribunal' to the main CP (IB) No. 645 / 7 / HDB / 2018 (Filed by the 1st Respondent / Bank / Financial Creditor, vide Paragraph 11), had mentioned that to the 'Show Cause Notices', issued on 20.08.2016 and 26.03.2018, by the 'Bank', the 'Promoters', gave a 'reply', stating that the 'Default', took place, because of the 'natural calamities', and failure to 'sanction WC Limits', by the Banks', 'failure of ill designed 'CDR', 'SBI CAPS', under the influence of 'State Bank of India', without considering seasonality of the 'Business' of the 'Corporate Debtor'. 82. Apart from the above, the 'Corporate Debtor', had pointed out in its 'Counter' (before the ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrant the 'applicability of Doctrine of Relation Back', so that, a 'Legal Right', that had accrued in favour of the 'Corporate Debtor', be taken away, this 'Tribunal', pertinently points out that the 1st Respondent / Bank (State Bank of India), before the Hon'ble Supreme Court of India, had filed Civil Appeal No.2264 of 2021, against the 'Vibha Agro Tech Limited' ('Corporate Debtor'), wherein, on 20.10.2021, an 'Order', was passed, in permitting the 1st Respondent / Bank ('Appellant'), to 'seek amendment of the Application under Section 7, so as to incorporate the case based on acknowledgement, as contained in the 'Balance Sheets', allegedly, of the Respondent, with costs of Rs.3 Lakhs, which was remitted by the 'Bank', on 05.11.2021, in the 'Account' of the 'Corporate Debtor'. 86. As a matter of fact, resting upon the aforesaid Hon'ble Supreme Court of India in Civil Appeal No. 2264 of 2021, the 1st Respondent / Bank, had filed IA No. 87 of 2022 in Comp. App (AT) (INS.) No. 636 of 2020 (before this 'Tribunal'), which came to be 'Allowed', on 11.01.2022, pursuant to which, the 1st Respondent / Bank was permitted, to carry out the Amendment. 87. In this connection, this 'Tribunal' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd no reliance can be placed upon the 'Balance Sheet' for the Financial Year 2015 - 16, signed on 27.08.2016, as the same was signed, after the 'Lapse' of 'Limitation' period, from the 'Date of Default', this 'Tribunal', points out that the 'Date of Default', i.e., 30.04.2013 (Declaration of Corporate Debtor's Account as 'Non Performing Asset'), is not to be taken into account, because of the reason that there was a 'CDR Package', in place for 'Restructuring the Account of the 'Corporate Debtor', and that apart, a 'Master Restructuring Agreement', dated 26.09.2013, was executed between the 'Parties', but, the 'Restructuring', had failed on 31.01.2015, because of the repeated 'Defaults', made by the 'Corporate Debtor'. 91. Furthermore, in the instant case on hand, it must be borne in mind, that the 'Corporate Debtor', had availed the benefit of a 'Restructuring Exercise', on various occasions, had admitted the 'Debt', including by providing 'One Time Settlement Proposals', on 19.06.2015, 22.09.2017, 03.05.2019, 30.04.2021, 18.03.2021, 14.06.2021 and 26.07.2022 to the 1st Respondent / Bank. As such, this 'Tribunal', in an unequivocal term holds that the 'Date of Non Performing Asset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulations, and therefore, he was authorised, to verify and sign the pleadings. Also that, the IA No. 87 of 2022 in Comp. App (AT) (INS.) No. 636 of 2020, was 'allowed', by this 'Tribunal', on 11.01.2022, and admittedly, the same become 'Final', 'Conclusive' and 'Binding', between the 'Parties'. As a matter of fact, the 1st Respondent / Bank, had filed the 'Amended Section 7 Application', of the I & B Code, 2016, to initiate 'Corporate Insolvency Resolution Process', against 'Vibha Agro Tech Limited' ('Corporate Debtor'), before the 'Adjudicating Authority' / 'Tribunal' (pursuant to the 'Order' dated 20.10.2021, passed by the Hon'ble Supreme Court of India, in Civil Appeal No.2264 of 2021). Therefore, this 'Tribunal', holds that the Section 7 Application (filed under the I & B Code, 2016), by the '1st Respondent / Bank', was filed with 'proper authorisation', by the concerned 'Officer / Authority' of the 'Bank', and the 'contra plea', taken on behalf of the 'Appellant', is 'not acceded to'. 95. At this juncture, this 'Tribunal', worth points out that in an 'exceptional case', an 'amendment', can be 'allowed', which would have the effect of taking away from the 'Defendant', a 'r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court of India, in South Konkan Distilleries v. Prabhakar Gajanan Naik, (2008) 14 SCC 632, to the effect that the 'Amendment Allowed', relates back to the 'Date of Filing of the Suit', and without any 'simmering doubt', this 'Tribunal', holds that the 'Amendment', in the 'Petition', relates back to the 'Filing of the main Petition in CP (IB) No. 645 / 7 / HDB / 2018' (dated 06.09.2018 - but, filed on 12.09.2018), and as such, the 'contra plea', taken on behalf of the 'Appellant', is negatived, by this 'Tribunal'. 97. In regard to the plea of the Appellant that the 1st Respondent / Bank / Financial Creditor / Petitioner', cannot place reliance upon the 'Balance Sheet' for the Financial Year 2015-16, signed on 27.08.2016, as the same is post the 'Period of Limitation', from the 'Date of Default' i.e., 30.04.2013 ('NPA'), this 'Tribunal', points out that the provisions of 'Non Performing Asset', relates to 'Debt Recovery Tribunal' proceedings (the 1st Respondent / Bank, against the 'Corporate Debtor', had filed OA No.2256 of 2017 (Old No. 417 of 2016), before the 'Debt Recovery Tribunal', Hyderabad), and it has nothing to do with the I & B Code, 2016, in the considered opinion o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oks of Accounts' of the 'Appellant', would amount to an 'acknowledgement of liability', within the meaning of Section 18 of the Limitation Act, and extend the 'Limitation Period', for the 'discharge of liability', as 'Debt'. 105. In the decision of Hon'ble Supreme Court of India in A.V. Murthy v. B.S. Nagabasavanna AIR 2002 at Page 985, wherein, it is observed that 'if the amount borrowed by the Respondent', is shown in 'Balance Sheet', it may amount to an 'acknowledgement', and the 'Creditor', might have a 'fresh period of Limitation', from the 'date on which', an 'acknowledgement', was made. 106. It cannot be gainsaid that if a 'Debtor', 'acknowledge', receiving the 'Payment', but, chose to amuse itself, by 'denying' the 'liability', the 'document', would still be 'one', that would keep the claim 'alive', within the 'ambit' of 'Section 18 of the Limitation Act, 1963'. Also that, if the 'Sum', borrowed by the Respondent, is shown in the 'Balance Sheet', it may amount to an 'acknowledgement', and the 'Creditor', might have a 'fresh Period of Limitation', on the date on which, an 'acknowledgement', was made. 107. At this stage, this 'Tribunal', aptly points out the decision of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debt and (b) Default, are to be proved and once they are established, then, the 'Application', which is complete in all respects, is to be 'admitted', by the 'Adjudicating Authority' / 'Tribunal'. 112. Be that as it may, in the present case on hand, the 1st Respondent / Bank, had claimed a Sum of Rs.327,03,72,501.81/- as 'Debt', 'due and payable', by the 'Corporate Debtor', as on 31.08.2018 (vide in its Application in CP (IB) No. 645 / 7 / HDB /2018, before the 'Adjudicating Authority' / 'Tribunal'), this 'Tribunal', keeping in mind of the 'primordial fact(s)' the 'Corporate Debtor', had tacitly 'Acknowledged', its 'Debt' / 'Liability', in its 'Balance Sheets', for the Year ending 2013-14 dated 16.08.2014, for the Year ending 2014-15 dated 27.08.2015 and for the Year ending 2015-16 dated 27.08.2016, the same being 'not Barred by Time', taking note of the entire conspectus of the facts and circumstances of the present case, in an encircling manner, and exercising its subjective discretion, comes to a resultant conclusion that the aspect of 'Debt and Default', committed by the 'Corporate Debtor', have been duly proved by the '1st Respondent / Bank'. Viewed in that perspective, the ' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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