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TMI Blog2021 (4) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... in this appeal - appeal dismissed. - Company Appeal (AT) (Insolvency) No. 276 of 2020 - - - Dated:- 8-4-2021 - [Justice Bansi Lal Bhat] Acting Chairperson And [Dr. Ashok Kumar Mishra] Member (Technical) For Appellant : Mr. Arun Kathpalia, Sr. Advocate with Ms. Sowmya Sai kumar, Mr. Upinder Singh and Mr. Ankush Chattopadhyay, Advocates. For Respondents : Mr. Vivek Kohli, Sr. Advocate with Ms. Malvika Jain and Ms. Somyashree, Advocates for R-1. Mr. Sandeep Bhuraria and Mr. Aman Anand, Advocates for R-2. Mr. Pawan Trivedi, RP. JUDGEMENT DR. ASHOK KUMAR MISHRA, TECHNICAL MEMBER. 1. The present appeal is filed by the Appellant Sanjay Lamba under Section 61 of the Insolvency and Bankruptcy Code, 2016 (in short Code ) against the Impugned order dated 05.02.2020 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench (Court-II) in (IB) (3383/2019). The Adjudicating Authority has admitted the petition filed under Section 7(5) of the Code r/w Rule 4 of the IBBI (Applications to Adjudicating Authority) Rules, 2016 on the Application filed by Financial Creditor -Corporation Bank, New Delhi. The Adjudicating Authority has obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces Pvt Ltd. Vs. Parag Gupta (2019) 11 SCC 633, b. Gaurav Harigovindbhai Dave Vs. ARC (India) Ltd, (2019) 10 SCC 572, c. Jignesh Shah Ar. V. Union of India Anr. (2019) 10 SCC 750 d. Babulal Vardharji Gurjar Vs. Veer Gurjar Aluminium Industries Pvt. Ltd and Anr. (Civil Appeal No. 6347 of 2019 e. Kaustav Ray Vs. State Bank of India (Company Appeal (AT) (Ins) No. 804 of 2020 dated 20.01.2021 f. State bank of India Vs. Krishidhan Seeds Pvt. Ltd, (Company Appeal (AT) (Ins) No. 972 of 2020 g. Jagdish Prasad Sharda Vs. Allahabad Bank (Company Appeal (AT) (Ins) No. 183 of 2020 h. V.Padmakumar Vs. Stressed Assets Stabilization Fund (SASF) Anr., Company Appeal (AT) (Ins) No. 57 of 2020 i. Bishal Jaiswal Vs. ARC (India) Ltd. Anr. Company Appeal (AT) (Ins) No. 385 of 2020. 4. It has also been mentioned by the Appellant that revival letter and OTS Proposal cannot shift the date of default and so also payments made by the Appellant cannot extend limitation. The Appellant is accepting that they have made an offer around April, 2019 and made a payment of ₹ 8.3 Crore between 13.05.2019 to 16.07.2019 and subsequently the OTS was canc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of Resolution Plan, one time Settlement or corporate debt restructuring etc. Based on above submissions, the Respondent-Financial Creditor submitted to dismiss the present appeal and uphold the impugned order of Adjudicating Authority dated 05.02.2020. 7. Apart from the above stated judgment, we have the privilege to go through the following two judgments of Hon ble Apex Court as mentioned below which have been delivered in the last week of March, 2021: a. Sesh Nath Singh Anr. Vs. Baidyabati Sheoraphuli Co-operative Bank Ltd and Anr. in Civil Appeal No. 9198 of 2019 delivered on 22.03.2021 b. Laxmi Pat Surana Vs. Union Bank of India Anr. In Civil Appeal No. 2734 of 2020 delivered on 26.03.2021. In case of Laxmi Pat Surana (as stated supra) the specific question raised was whether an application under Section 7 of the Code filed after 3 years from the date of declaration of the loan account as NPA being the date of default is not barred by limitation. It has been made amply clear that right to initiate action within 3 years from such acknowledgement of debt accrues to the Financial Creditor. However, needs to be exercise within 3 years when the right to sue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia) Ltd. And Anr. 6 , this Court held:- 6. ...The present case being an application which is filed under Section 7, would fall only within the residuary Article 137. 53. Section 5 of the Limitation Act provides that any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period of limitation, if the appellant or the applicant satisfies the Court, that he had sufficient cause for not preferring the appeal or making the application within such period. The explanation in Section 5 of the Limitation Act clarifies that, the fact that the appellant or the applicant may have been misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period, may be sufficient cause within the meaning of this Section. 54. In B.K. Educational Services Private Limited v. Parag Gupta and Associates 7 , this Court held:- 42. It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. The rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excluded application of Section 4 to Section 24 of the Limitation Act, 1963 while determining period of limitation and Section 29(2) of the Limitation Act appears to be applicable. Hence, Section 18 19 of the Limitation Act, 1963 is applicable to the Code. For clarity Section 18, 19 and Section 29 of The Limitation Act, 1963 is reproduced below for ease of convenience: Section 18 - Effect of acknowledgment in writing.- (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or 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) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding under any such law. (4) Sections 25 and 26 and the definition of easement in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend. 9. After going through the various submissions and the recently judgments delivered by the Hon ble Apex Court, a clarity has come that Article 137 of the Limitation Act, 1963 defining a period of 3 years will be computed after considering Section 18 or 19 of The Limitation Act, 1963 with a fresh period of limitation inspite of these dates being after the date of NPA. 10. In view of the aforesaid submission and the Appellant acknowledging the debt on 21.06.2017 itself shifts the 3 years period to June, 2020 whereas the Application before the Adjudicating Authority itself is filed on 22.11.2019. If we consider the part payment which has been made between May, 2019 to June / July, 2019, then naturally the application has been filed within a period of 3 years. 11. Hence, we do not find any merit in this appeal based on law laid down and hence the appeal deserves to be dismissed and is dismissed. 12. Pending application, if any, stan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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