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2021 (10) TMI 708 - AT - Insolvency and BankruptcyAdmissibility of application filed under CIRP during pendency of the proceeding of SARFAESI Act, 2002 - extension of period of limitation as per section 18 of Limitation Act, 1963 - HELD THAT - An Application filed 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 classification of a loan account of the Corporate Debtor as NPA if there were an acknowledgement of the debt by the Corporate Debtor before the 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. Hon'ble Supreme Court in the case of Dena Bank 2021 (8) TMI 315 - SUPREME COURT , while dealing with the pleadings and documents required to be filed at the time of making an Application under Section 7 of the Code, observed that the Financial Creditor could only fill in the particulars as mentioned in Form-1 and there is no scope for elaborate pleadings. An application under Section 7 cannot be compared with a plaint in a suit. Further, there is no bar for filing documents as required under Section 7 until a final order either admitting a dismissing the Application has been passed. Non-furnishing of information by the Financial Creditor at the time of filing an Application under Section 7 of the Code need not necessarily entail in dismissal of the Application. Instead, an opportunity can be provided to the Financial Creditor till the admission/rejection of petition to provide additional information required for the satisfaction of the Adjudicating Authority with respect to the occurrence of the default - in the instant case, the balance sheet that has been brought on record in the instant case before the Adjudicating Authority shall be taken into consideration while deciding the question of limitation and default on the part of the Corporate Debtor. The said documents cannot be ignored simply on the premise that it is not pleaded in the Application filed in Form-1 for initiation of the Corporate Insolvency Process - A reading of the documents reveals that the Corporate Debtor has acknowledged/subsisting liability to attract the provisions of Section 18 of the Limitation Act, 1963. The present Appeal is liable to be dismissed - Appeal dismissed.
Issues Involved:
1. Whether the application under Section 7 of the Insolvency & Bankruptcy Code, 2016 (IBC) was barred by limitation. 2. Whether the balance sheet entries constituted an acknowledgment of debt under Section 18 of the Limitation Act, 1963. 3. Whether the application was validly signed and authorized. 4. Whether the financial debt was ascertained and proceedings before the Debt Recovery Tribunal (DRT) impacted the application. 5. Whether there was suppression and concealment of material facts in the application. 6. Whether the project failure was due to the fault of the consortium lenders. Detailed Analysis: 1. Limitation: The appellant contended that the application under Section 7 of the IBC was time-barred as it was filed more than 4.5 years after the date of default, which was November 5, 2014. The appellant argued that no factual foundation for the extension of the limitation period was set out in Form-1 and that the balance sheet did not constitute an acknowledgment of debt. The Tribunal referred to the Supreme Court's rulings in cases like Dena Bank vs. C. Shivakumar Reddy and Asset Reconstruction Company (India) Limited vs. Bishal Jaiswal, which clarified that an acknowledgment in the balance sheet could extend the limitation period. The Tribunal found that the balance sheets for the years ending March 31, 2017, and March 31, 2019, contained acknowledgments of the debt, thus extending the limitation period. 2. Balance Sheet Entries as Acknowledgment: The appellant argued that the balance sheet did not specifically mention the name of UCO Bank, and thus, it did not amount to an acknowledgment of debt. The Tribunal held that the balance sheets, when read in conjunction with the Director's and Auditor's reports, constituted an acknowledgment under Section 18 of the Limitation Act. The Tribunal cited the Supreme Court's decision in Asset Reconstruction Company (India) Limited vs. Bishal Jaiswal, which held that entries in books of accounts and balance sheets could amount to an acknowledgment of debt. 3. Valid Authorization of Application: The appellant contended that the application was not signed, verified, or instituted by a duly authorized and competent person. The Tribunal found that the authorization letter dated February 5, 2019, was valid and that the application was properly authorized. 4. Financial Debt and DRT Proceedings: The appellant argued that the financial debt was yet to be ascertained and that proceedings were pending before the DRT. The Tribunal held that the pendency of DRT proceedings did not impact the validity of the application under Section 7 of the IBC. The Tribunal noted that the financial debt was acknowledged in the balance sheets and that the DRT proceedings did not preclude the initiation of the Corporate Insolvency Resolution Process (CIRP). 5. Suppression and Concealment of Material Facts: The appellant alleged suppression and concealment of material facts in the application. The Tribunal found no merit in this argument, stating that the balance sheets and other documents provided sufficient evidence of the debt and default. 6. Fault of Consortium Lenders: The appellant contended that the project failure was due to the fault of the consortium lenders, including UCO Bank. The Tribunal did not find this argument relevant to the determination of the application under Section 7 of the IBC. Conclusion: The Tribunal dismissed the appeal, holding that the application under Section 7 of the IBC was not barred by limitation due to the acknowledgment of debt in the balance sheets. The Tribunal also found that the application was validly authorized and that the pendency of DRT proceedings did not affect the initiation of CIRP. The Tribunal vacated the interim order dated April 7, 2020, and dismissed the appeal with no order as to costs.
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