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TMI Blog2020 (4) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Appellant : Present but did not mark appearance. For the Respondents : Mr. Ashish Rana and Mr. Harshit Garg, Advocates, Mr. Ravi Raghunath, Advocate ORDER KANTHI NARAHARI, MEMBER (TECHNICAL) The Appeal preferred by a Shareholder and Director of the Corporate Debtor i.e., M/s Radheshyam Agro Products Pvt. Ltd. challenging the order dated 20th September, 2019 passed by the Adjudicating Authority (National Company Law Tribunal), Ahmedabad Bench, Ahmedabad in CP (I.B.) No. 459/7/NCLT/AHM/2018]. 2. The Adjudicating Authority admitted the Application filed by the Respondent No. 1 herein in the capacity as Financial Creditor under Section 7 of Insolvency and Bankruptcy Code, 2016 (in short IBC ) on the ground that the Corporate Debtor defaulted in payment of debt/loan facility availed by the Corporate Debtor. 3. Learned Counsel for the Appellant submitted that the Application filed by the Respondent No. 1 herein before the Adjudicating Authority was contested by filing objections to the said Application and took a specific stand that the Application filed by the Financial Creditor was time barred. He submits that the Adjudicating Authority admitted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lars of the Financial Debt has been given and the debt and default has been mentioned as on 05.11.2014. It is an admitted fact that the Application under Section 7 of IBC filed by Respondent No. 1herein on 30.08.2018. We have to see whether the Application filed on 30.08.2018 is within limitation period in view of Article 137 of Limitation Act, 1963 which is applicable to Application under Sections 7 9 of IBC as held by Hon ble Supreme Court in B.K. Educational Services Pvt. Ltd. Vs. Parag Gupta Associates passed in Civil Appeal No. 23988 of 2017 reported in (2019) 11 SCC 633. 8. We have to go by the judgment of the Hon ble Supreme Court in strict sense and to see whether the Application filed under Section 7 of IBC by the financial Creditor is within limitation or not. The Adjudicating Authority, after hearing the parties observed as under: 19.2 The CD has defaulted in making repayment of loan/cc to the Petitioner Bank and the date of default is 05.01.2014 . the Statement of Accounts and the CIBIL Reports submitted by the Applicant Bank confirm the default committed by the Corporate-Debtor. 19.3 The Petitioner Bank has filed the petition within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Financial Creditor on 31.03.2017. We are of the view that the SARFAESI and DRT proceeding will not extent the period of limitation since those proceedings are independent and as per section 238 of IBC, the Insolvency and Bankruptcy Code is a complete Code and will have overriding effect on other laws. Therefore, the proceedings initiated or pending in DRT, either initiated under SARFAESI or under debts and due to Banks and Financial Institutions cannot be taken into account for the purposes of limitation. OTS was not accepted by the 1st Respondent/the Financial Creditor, therefore, the same cannot be treated as an acknowledgement in view of Section 18 of the Limitation Act, 1963. From the records it is seen that the Appellant also made OTS Proposal on 28.04.2016 prior to the OTS Proposal i.e., 01.06.2016. However, it is stated that first OTS offer was given by the Appellant by using the words as without prejudice . However, it is contended by the Respondent No. 1 herein, that in the OTS Proposal dated 01.06.2016 there is no use of word without Prejudice . Therefore, the second OTS Proposal dated 01.06.2016 can be treated as an acknowledge for the purpose of limitation. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decree or order of a court. (b) debt does not include money payable under a decree or order of a court. 11. It is to be seen that Article 19 of the Limitation Act will fall under the category of first division of schedule which applies to the suits. However, Section 7 of the IBC is not a suit and as held by Hon ble Supreme Court, Section 7 is an Application under the IBC which falls under the category of Application in para II of 3rd division. Therefore, the Hon ble Supreme Court held that the Article 137 will apply to the Applications filed under Section 7 9 of the IBC. Therefore, the stand of the Respondent No. 1 that the period of limitation will get extended from the date of payment of amount by the Guarantor on 01.04.2017 cannot be a ground and the limitation will not get extended. Therefore, the submission made by the Respondent no. 1 is negated. 12. Learned Counsel for the Respondent No. 1 also taken a stand that the Appellant filed an Application under Section 17 of SARFAESI Act wherein the Appellant admitted the fact of taking loan and failed to repay the same. Therefore, he submits that the same acts as an acknowledgment for the purposes of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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