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2023 (9) TMI 874 - AT - Insolvency and BankruptcyApplication filed u/s 7 of IBC dismissed - dismissal on the ground of time limitation - whether limitation for filing Section 7 Application had already come to an end when Section 7 Application was filed by the Appellant on 01.10.2021? - HELD THAT - The law is well settled that for finding out acknowledgement within the meaning of Section 18 of the Limitation Act, balance sheets can be looked into. Hon ble Supreme Court in ASSET RECONSTRUCTION COMPANY (INDIA) LIMITED VERSUS BISHAL JAISWAL ANR. 2021 (4) TMI 753 - SUPREME COURT has examined the question in reference to Section 18 of the Limitation Act and held that it depends on the facts of each case as to whether an entry made in a balance sheet made in accordance with law, qua any particular creditor is unequivocal or has been entered into with caveats. Whether the notes to the account or the Director s Report/Statement as relied by Learned Counsel for the Respondent are sufficient to hold that there is no acknowledgement in the balance sheet of the debt? - HELD THAT - The acknowledgement of debt in the balance sheets from 1998-99 is continuous. Notes to the account and the Director s Report/Statement at best can be treated to be account of litigation emanating from such date - it is noticed that in the notes to the account and the Director s Statement/Report, it has been categorically mentioned that Company failed to repay the loan. In the Financial Year 2020-21, there is reiteration of credit facility availed by the Company from the IDBI - When the Company Petition was dismissed with the observation as observed, there is a failure to see that how the Respondent can contend that claim of the Appellant is limited to only Rs. 250 Lakhs. After perusing the relevant balance sheets and director s report, it is satisfied that balance sheets contain an acknowledgement of debt and the mere fact that details of litigation emanating from the loan and subsequent events are mentioned in the notes to the account and the director s report does not denude the value of the balance sheets for purposes of Section 18 of the Limitation Act. Reference made to Judgment of this Tribunal in ASSET RECONSTRUCTION COMPANY (INDIA) LIMITED VERSUS UNIWORTH TEXTILES LIMITED 2023 (7) TMI 484 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI where this Tribunal had occasion to consider the balance sheets for purposes of finding out acknowledgement under Section 18 of the Limitation Act. This Tribunal also looked into the Director s Report - This Tribunal ultimately accepted the acknowledgment in the balance sheets to extend the benefit of Section 18 of the Limitation Act and allowed the Appeal and set aside the order of the Adjudicating Authority dismissing Section 7 Application. The Adjudicating Authority committed error in rejecting Section 7 Application filed by the Appellant as barred by time. The Application filed by the Appellant was not barred by time there being continuous acknowledgment in their respective balance sheets of the Corporate Debtor which acknowledgment was within the meaning of Section 18 of the Limitation Act extending the period of limitation by fresh period of limitation by each acknowledgment - Appeal allowed.
Issues Involved:
1. Whether the Section 7 Application filed by the Appellant was barred by time. 2. Whether the balance sheets of the Corporate Debtor contain an acknowledgment of debt within the meaning of Section 18 of the Limitation Act, 1963. 3. Whether the principle of res judicata applies based on the previous judgments of the Delhi High Court regarding the balance sheets. Summary: Issue 1: Barred by Time The Appellant, a Financial Creditor, filed an appeal against the Order dated 06.06.2022 by the National Company Law Tribunal (NCLT), New Delhi, which dismissed the Section 7 Application as barred by time. The NCLT held that the limitation period of three years had expired before the Settlement Agreement dated 27.08.2019, and there was no acknowledgment of debt after 14.01.2011. The Adjudicating Authority dismissed the Section 7 Application without issuing notice to the Corporate Debtor. Issue 2: Acknowledgment of Debt in Balance Sheets The Appellant argued that continuous acknowledgment of debt in the balance sheets from 1998-99 to 2020-21 extended the limitation period under Section 18 of the Limitation Act. The Respondent contended that the notes to the accounts in the balance sheets disputed the liability, thus not extending the limitation period. The Tribunal examined the balance sheets and notes to accounts, concluding that the acknowledgment of debt in the balance sheets was sufficient to extend the limitation period. The Tribunal referred to the Supreme Court's judgment in Asset Reconstruction Company India Limited Vs. Vishal Jaiswal & Anr., which held that balance sheets could be considered for acknowledgment of debt under Section 18 of the Limitation Act. Issue 3: Principle of Res Judicata The Respondent argued that the balance sheets had been considered by the Delhi High Court in the winding-up petition, and thus the issue should not be revisited. The Tribunal noted that the Delhi High Court's observations were limited to the context of the winding-up petition and did not address the acknowledgment of debt under Section 18 of the Limitation Act. Therefore, the principle of res judicata did not apply. Conclusion: The Tribunal concluded that the Adjudicating Authority erred in dismissing the Section 7 Application as barred by time. The continuous acknowledgment of debt in the balance sheets extended the limitation period under Section 18 of the Limitation Act. The Tribunal allowed the appeal, set aside the NCLT's order, and revived the Section 7 Application for fresh hearing and decision in accordance with the law. The Corporate Debtor was granted three weeks to file its reply to the Section 7 Application.
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