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TMI Blog2020 (9) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating Authority need not to examine merits or to go into the controversy in the present I.B. Petition -The matter can be simply disposed of on the ground of the limitation. As the present I.B. Petition is found to be filed beyond Limitation i.e., three years from the date of default, i.e. date of declaration of NPA and date of recalling of notice, i.e. 14.02.2014. Hence, it is held that it is hit by limitation and cannot be entertained - Petition dismissed. - C.P. (I.B.) No. 5/7/NCLT/AHM/2018 - - - Dated:- 27-5-2020 - Harihar Prakash Chaturvedi, Member (J) and Prasanta Kumar Mohanty, Member (T) For the Appellant : Ashish Doshi, PCS For the Respondent : Shashvata Shukla, Advocate ORDER Harihar Prakash Chaturvedi, Member (J) 1. The present I.B. Petition is preferred by the Petitioner/Financial-Creditor M/s. Phoenix ARC Private Limited under Section 7 of the Insolvency and Bankruptcy Code, 2016 (herein after referred to as a Code ), seeking initiation of Corporate-Insolvency-Resolution-Process ( CIRP in Short) in respect of the Corporate-Debtor-Company namely, M/s. Nagaur Water Supply Company Private Limited. The Petitioner/Financial-Creditor, M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount as per the table given below: Opening Balance (as per assignor statement) as on 28.03.2014 39,90,81,318=00 Interest for period 28.03.2014 to 30.11.2017 29,70,91,979=00 Penal interest for the period 28.03.2014 to 30.11.2017 4,07,30,719=00 Delayed Interest charged by assignor 51,18,703=00 Expenses 2,32,925=00 7. It is stated that the Respondent's account was declared as a Non-Performing Asset ( NPA ) on 30.11.2013. 8. The Petitioner, with the permission of this Court filed rebuttal documents on 03.07.2019 during the preceding and the prayer was allowed by this Tribunal. 9. As per the documents submitted by the Petitioner, the L T Infrastructure Finance Co. Ltd. had sanctioned following credit facility: Sr. No. Facilities Amount 1. Term Loan ₹ 40,00,00,000-00 10. The Petitioner, along with the origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Petitioner did not produced a copy of the Deed of Trust and hence, the present application filed under Section 7 is found incomplete. 16. Notwithstanding the above, this Tribunal, vide its order dated 28.08.2019 granted time to the Petitioner to give clarification by furnishing relevant documents in support of the averments made and to cure such defects and the same after hearing the counsel for both parties was taken on record vide its order dated 23.09.2019. 17. Therefore, the Respondent has contended that although a copy of Trust Deed on 21.09.2019 has been furnished by the Petitioner but no application for condonation of delay by showing sufficient reasons has been filed not the defects were cured within the prescribed period under the I.B. Code. Hence, cannot be entertained by this Court for disposal of the present petition. 18. The Respondent has further placed reliance on the decision of Hon'ble Supreme Court in the matter of B.K. Educational Services (Supra) stating that the present Insolvency Proceedings have been initiated beyond the prescribed period of limitation of three years from the date of default 19.02.2014 of the recall notice. Hence, it is bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng reproduced here as under: 1. In the present case, the Respondent No. 2 was declared NPA on 21.07.2011. At that point of time, the State Bank of India filed two O. As in the Debt Recovery Tribunal in 2012 in order to recover a total debt of 50 Crores of rupees. In the meanwhile, by an assignment dated 28.03.2014, the State Bank of India assigned the aforesaid debt to Respondent No. 1. The Debt Recovery Tribunal proceedings reached judgment on 10.06.2016, the Tribunal holding that the O. As filed before it were not maintainable for the reasons given therein. 2. As against the aforesaid judgment, Special Civil Application Nos. 10621-10622 were filed before the Gujarat High Court which resulted in the High Court remanding the aforesaid matter. From this order, a Special Leave Petition was dismissed on 25.03.2017. 3. An independent proceeding was then begun by Respondent No. 1 on 03.10.2017 being in the form of a Section 7 application filed under the Insolvency and Bankruptcy Code in order to recover the original debt together with interest which now amounted to about 124 Crores of rupees. In the Form-I that has statutorily to be annexed to the Section 7 application in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7, would fall only within the residuary Article 137. As rightly pointed out by learned Counsel appearing on behalf of the Appellant, time, therefore, begins to run on 21.07.2011, as a result of which the application filed Under Section 7 would clearly be time-barred. So far as Mr. Banerjee's reliance on para 7 of B.K. Educational Services Private Limited (supra), suffice it to say that the Report of the Insolvency Law Committee itself stated that the intent of the Code could not have been to give a new lease of life to debts which are already time-barred. 7. This being the case, we fail to see how this para could possibly help the case of the Respondents. Further, it is not for us to interpret, commercially or otherwise, articles of the Limitation Act when it is clear that a particular Article gets attracted. It is well settled that there is no equity about limitation-judgments have stated that often time periods provided by the Limitation Act can be arbitrary in nature. 8. This being the case, the appeal is allowed and the judgments of the NCLT and NCLAT are set aside. 21. The Hon'ble Supreme Court further in the matter of Vashdeo R. Bhojwani Vs. Abhyudaya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e years prior to the date of filing of the application, the application would be barred Under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application. 4. In order to get out of the clutches of para 27, it is urged that Section 23 of the Limitation Act would apply as a result of which limitation would be saved in the present case. This contention is effectively answered by a judgment of three learned Judges of this Court in Balkrishna Savalram Pujari and Ors. v. Shree Dnyaneshwar Maharaj Sansthan and Ors., MANU/SC/0174/1959 [1959] Supp. (2) S.C.R. 476. In this case, this Court held as follows: ....... In dealing with this argument it is necessary to bear in mind that Section 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the dam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We had also made it clear beyond any doubt that for applications that will be filed Under Section 7 of the Code, Article 137 of the Limitation Act will apply. However, we find in the impugned judgment that Article 62 (erroneously stated to be Article 61) was stated to be attracted to the facts of the present case, considering that there was a deed of mortgage which was executed between the parties in this case. We may point out that an application Under Section 7 of the Code does not purport to be an application to enforce any mortgage liability. It is an application made by a financial creditor stating that a default, as defined under the Code, has been made, which default amounts to ₹ 1,00,000/- (one lakh) or more which then triggers the application of the Code on settled principles that have been laid down by several judgments of this Court. 3. Article 14.1 of the Constitution of India mandates that our judgments are followed in letter and spirit. The date of coming into force of the IBC Code does not and cannot form a trigger point of limitation for applications filed under the Code. Equally, since applications are petitions which are filed under the Code, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received. Explanation For the purposes of this section, (a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or right; Company Appeal (AT) (Insolvency) No. 407 of 2019 Page 4 of 14 (b) the word signed means signed either personally or by an agent duly authorised in this behalf; and (c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right. 7. In the present case, there is nothing on record to suggest that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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