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TMI Blog2020 (3) TMI 1185X X X X Extracts X X X X X X X X Extracts X X X X ..... enefit of the Section 14 of the Limitation Act, 1963 had failed to secure relief in favour of earlier proceeding not because of any defect or Jurisdiction or some other cause of like nature, he cannot derive the benefit of the ingredients of Section 14 of the Act. By virtue of Deed of Guarantee Corporate Debtor being a Corporate Person owes debt to the Bank.In the present case the Corporate Debtor is the Guarantor and in the year 2008, undertook to repay the debt in case of default by the Principal Borrower. As per Section 3(8) of the Code Corporate Debtor means a Corporate Person who owes debt of any person. This Tribunal keeping in mind the present facts and circumstances of the instant case in an integral fashion, which float on the surface case comes to an inescapable conclusion that there is an acknowledgment of Debt on various dates like 2.2.07, 17.2.07, 3.8.07 for the loan facilities availed by Mahaveer Construction the Letters of Guarantee Acknowledged by the Corporate Debtor (M/s Surana Metals Ltd.) on 16.9.10, 3.3.12, 27.5.15, 24.10.16 executed by the Appellant and on 8.12.18 by the Surana Metals Ltd. etc. This apart, here is an acknowledgment of Debt by the Pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmission. Section 5A of IBC,2016 states Corporate Guarantor means the corporate person who is surety in contract guarantee to a Corporate Debtor. Section 3(8) of IBC defines Corporate Debtor means corporate person who owes a debt of any person. In this case, it is not in dispute that by virtue of deed of guarantee, the Corporate Debtor herein who is the corporate person owes a debt to the Bank. Hence, the Corporate definition in Section 5A of IBC, 2016 of corporate guarantor cannot be considered for exclusion of this proceeding from consideration for a simple reason that the definition is just explanatory definition as to who could be called as corporate guarantor. In this case, the corporate Debtor is the guarantor of the individual. He executed deed of guarantee in the year 2008. He thereby undertook to repay the debt in case of default by the original borrower. The definition of the corporate guarantor relied on by him in Section 5A cannot be used to show applicability or inapplicability of provisions of IBC against him as it is just explanatory definition. Hence, we reject his argument. 3. and resultantly held that the first Respondent/ Financial Creditor had proved that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts out that Section 5A of the Code is clear, unequivocal and unambiguous and if the legislature had enunciated to include the (Corporate Guarantor) in respect of a person and Firm within the purview of the Section 7 of the Code the same would have been provided in an explicit manner. 8. The Learned Counsel for the Appellant advances an argument that the application filed by the first Respondent/Bank/ Financial Creditor was barred by the plea of Limitation and that the Account was admittedly declared as Non-Performing Asset on 30.10.2010 by the First Respondent/Bank and that the application under Section 7 of the Code was filed on 13.02.2019 i.e. after more than nine years. 9. The Learned Counsel for the Appellant points out that the letters dated 03.03.2012, 27.05.2015, 24.10.2016 issued by the Principal Borrower and produced by the first Respondent/Bank are not an acknowledgment of Debt by any stretch of imagination,Since there is no admission of liability. In effect, the aforesaid letters do not start the fresh period of Limitation under Section 18 of the Limitation Act,1963 as averred by the Bank. 10. Expatiating his plea, the Learned Counsel for the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knowledgement i.e. 8.12.2018, furnished by the Corporate Guarantor . 16. Continuing Further, the Corporate Guarantor in its reply admitted to the effect that loan of ₹ 945 Lakhs and ₹ 245 Lakhs was sanctioned to you toM/s Mahaveer Construction of No. 12, Bonfield Lane, Kolkata -700001 . Our Corporate Guarantee was issued in accordance with the provisions of the Companies act, 1956 and as such the Corporate Guarantor on 8.12.2018 had admitted the execution of guarantee agreements on 2.2.2007,17.2.2007,3.8.2008, whereby the Corporate Guarantor had agreed to pay ₹ 12.05 Crores and interest on such amount. 17. The Learned Counsel for the Appellant emphatically takes a forceful stand that the Corporate Debtor as a Corporate Person being Company under the Companies Act,2013 and had given surety but in relation to a Contract or Guarantor orCorporate Debtor. Suffice it to make a pertinent mention that the Corporate Debtor had guaranteed surety in regard to this Contract where Debtor firm was Proprietor concern. Besides these, the Corporate Debtor cannot shirk hisliability to pay the debt to the Financial Creditor /Bank and also that the Corporate Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o separate legal existence. It is not dispute that the term Loan No. - 1 was disbursed to an extent of ₹ 9,60,00,000/- on 11.9.2007 and the second term Loan was disbursed to an extent of ₹ 2,45,00,000/- on 11.9.2008 and the total sum disbursed was ₹ 12,05,00,000/-.The Letter of Guarantee for ₹ 9,60,00,000/- was given on 2.02.2007, and on 17.02.2007, Letter of Guarantee was issued by the Corporate Debtor. On 30.8.2008 the Letter of Guarantee for ₹ 12,05,00,000/- was given on 30.8.2008 etc. By means of Guarantee , to and in favour of the First Respondent/Bank, Corporate Debtor under took to clear the Loan of the Principal Borrower ,in the event of the Principal Borrower committed default and it isthe primordial duty of the Corporate Debtor to clear the due amount. 21. In the instant case the Corporate Debtor (M/s Surana Metals Ltd.) had duly executed the Letter of Guarantor dated 2.2.2007, 17.2.2007 and 3.8.2008 for the Loan facilities Sanctioned by the Bank to M/s Mahaveer Construction also that the Corporate Debtor had acknowledged its debt on 16.9.2010,3.3.2012,27.5.2015,24.10.2016, and executed by the Appellant (Vide Page. No. 196,197,140,1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder: Here again, the trigger point is the date on which default is committed, on account of which the company is unable to pay its debts. This again is a fixed date that can be proved on the facts of each case. Thus, Section 433(e) read with section 434 of the Companies Act, 1956 would show that the trigger point for the purpose of limitation for filing of a winding-up petition under Section 433(e) would be the date of default in payment of the debt in any of the three situations mentioned in Section 434. 27.In Gaurav Hargovind Bhai Dave V/s Asset Reconstruction Company (India)Ltd. Anr. 2019 10SCC 572 the Hon ble Supreme Court has observed that the Respondent was declare NPA on 21.07.11 and Section 7 application was filed in 2017 while the I B Code was brought into force on 1.12.2016 and held that Art.62 of the Limitation Act applies only to suits and application filed under Section 7 falls within residuary Art. 137 of the Limitation Act and further the three years period had lapsed, the application under Section 7 was held to be time barred. 28. An Acknowledgment does not create any new right and it extends the limitation period as per decision P. Sreedevi V/s P. ..... 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