9911796707
TMI Blog2019 (10) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... f NCLT and NCLAT that presentation of debt in the balance sheet constitutes acknowledgment of debt. Since the corporate debtor, in the present case has asked for conformation of balance from the financial creditor as on 31st December 2017 and 30th June 2016 in respect of loan taken in 2014 which itself implies that such loan is continuously outstanding in the balance sheet of corporate debtor from earlier financial years ending on 31st March 2015, 31st March 2016 and 31st March 2017. Thus, this fact by itself goes against the corporate debtor and irrespective of these emails, there exists acknowledgment of debt due and payable which is not barred by limitation. This being so, hence, such emails also fall in the period specified for filing of suit as per provisions of Limitation Act, 1963 and, therefore, these comply with the requirements of Sec. 18 of Limitation Act, 1963. There is no merit in the claim of the corporate debtor that the said emails cannot be said to be an acknowledgment within the meaning of provision of Sec. 18 of Limitation Act, 1963 and the same is rejected - application admitted. - CP (IB) No.1506/KB/2018, CA (IB) No.1220/KB/2019 - - - Dated:- 16-10-2019 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the letters dated 29/1/2018 and 30/7/2018 constitute acknowledgment as per provision of Sec. 18 of the Limitation Act, 1963. It is not in dispute that these letters have been written by the corporate debtor regarding confirmation of outstanding balance of ICD as on 31/ 12/2017 and 30/6/2018 as per the books of account of Financial Creditor. The confirmation of outstanding balance is to be given to the statutory auditors of the corporate debtor. This exercise cannot be considered in a light manner because reliance on the accuracy of the books of account and financial statement is based upon such standard auditing practice. In the letter dated 29/ 1/2018 it has been clearly mentioned that such confirmation was in respect of amounts payable in respect ICD as on 31/ 12/2017 which by itself establishes the fact of acknowledgment of debt beyond any doubt. To deal with the contention of the corporate debtor that such emails do not constitute acknowledgment of debt within the meaning of provision of Sec. 18 of the Limitation Act, 1963, we consider it necessary to reproduce the Sec. 18 of the said Act as under:- Effect of acknowledgment in writing. (1) Where, before the expirati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na of decisions of NCLT and NCLAT that presentation of debt in the balance sheet constitutes acknowledgment of debt. Since the corporate debtor, in the present case has asked for conformation of balance from the financial creditor as on 31st December 2017 and 30th June 2016 in respect of loan taken in 2014 which itself implies that such loan is continuously outstanding in the balance sheet of corporate debtor from earlier financial years ending on 31st March 2015, 31st March 2016 and 31st March 2017. Thus, this fact by itself goes against the corporate debtor and irrespective of these emails, there exists acknowledgment of debt due and payable which is not barred by limitation. This being so, hence, such emails also fall in the period specified for filing of suit as per provisions of Limitation Act, 1963 and, therefore, these comply with the requirements of Sec. 18 of Limitation Act, 1963. 7. I the case of Jignesh Shah another, Hon ble Supreme Court in the order da ed 25th September 2019 at para 19 of the order has held as under:- 19. The aforesaid judgements correctly hold that a suit for recovery based upon a cause of action that is within limitation cannot in any manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Sec. 18 of Limitation Act, 1963 provides much flexibility and takes into consideration various factors/ situations for explaining as to what would constitute acknowledgment and in view of Sec.238 and 238A of the Insolvency Bankruptcy Code, 2016, such provision has to be read further in conjunction with the wider meaning given to the term claim in Sec.3(6) of the Insolvency Bankruptcy Code, 2016 which includes right to payment even on equitable ground. 10. In view of above discussion, we hold that there is no merit in the claim of the corporate debtor that the said emails cannot be said to be an acknowledgment within the meaning of provision of Sec. 18 of Limitation Act, 1963. Accordingly, we reject the same. 11. The petition is otherwise complete in all respect. Ld. Counsel further submitted that the financial creditor had also proposed the name of the IRP Shri Kamal Nayan Jain, who is qualified to work and there were no disciplinary proceedings pending against him. He further contended that the requisite consent of proposed IRP was also annexed with the application. Accordingly, we admit the same and order as under:- ORDER i. The application filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. ix. Necessary public announcement as per Section 15 of the IBC, 2016 may be made. x. Shri Kamal Nayan Jain having registration No.IBBI/IPA-001/IPPO 10029/2016-17/ 10065 e mail id [email protected] is appointed as Interim Resolution Professional for ascertaining the particulars of creditors and convening a Committee of Creditors for evolving a resolution plan. xi. The Financial Creditor to pay a sum of (Rupees Three lakh only) to IRP as advance fee as per Regulation 33(2) of IBBI (Insolvency Resolution Process for Corporate Persons) Regulation 2016 which shall be adjusted from final bill. In case further funds are required during Corporate Insolvency Resolution Process and if not provided by Committee of Creditors then IRP/RP can approach this Tribunal for that purpose. The Resolution Professional shall conduct CIRP in time bound manner as per Regulation 40A of IBBI (Insolvency Resolution Process for Corporate Persons) Regulation, 2016. Xlii. Registry is hereby directed under section 7 (7) of the I.B.Code, 2016 to communicate the order to the Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
