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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 ..... judicating 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 observed that the total amount involved in default is Rs. 70,34,19,678.23/- and the account of the Corporate Debtor was classified as a Non-Performing Asset ('NPA') on 30.09.2016. They have also categorically mentioned that the Corporate Debtor has failed to give cogent reasons as to why CIRP shall not be triggered against it. Subsequent to the filing of the present appeal the Appellant has filed Interlocutory Application (for short 'IA') No. 1506 of 2020 informing the Tribunal that there has been certain development necessitating the filing of the IA. The Govt. of India vide Gazette Notification dated 04.03.2020 amalgamated Andhra Bank and Corporation Bank (Transferor Bank) into Union Bank of India (Transferee Bank) (for short ' Bank') and the same was allowed by this Appellate Tribunal vide its order dated 16.07.2020. 2. The Appellant is the member of the suspended Board of Directors of the Corporate Debtor - M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant cannot extend limitation. The Appellant is accepting that they have made an offer around April, 2019 and made a payment of Rs. 8.3 Crore between 13.05.2019 to 16.07.2019 and subsequently the OTS was cancelled by the Bank on 15.11.2019. They have also stated that Balance Sheets cannot be treated as acknowledgment of debt as held by this Tribunal in V.Padmakumar Vs. Stressed Assets Stabilization Fund (SASF) & Anr., Company Appeal (AT) (Ins) No. 57 of 2020. They have also placed reliance on RBI Master Circular to submit that once an account become NPA, the date of default cannot be shifted. 5. However, Respondent No.1 Bank/ Financial Creditor is still affirming in their Petition before the Adjudicating Authority that the date of default / NPA date is 30.09.2016. They have also stated that the Corporate Debtor on account of continuous default issued revival letter dated 21.06.2017 wherein they have categorically acknowledged for the purpose of Section 18 of the Indian Limitation Act, 1963 and the Corporate Debtor has given multiple letters dated 22.04.2019, 26.04.2019 and 12.06.2019 proposing one time settlement offer and the bank has finally agreed for a settlement at Rs. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 /apply accrues as per Article 137 of the Limitation Act. This is the affect of Section 18 of the Limitation Act, in that a fresh period of limitation is required to be computed from the time when the acknowledgment was so signed by the principal borrower or corporate guarantor as the case may be. In respect of Sesh Nath Singh and Anr. (as stated supra) certain extracts are given below for clarity on this subject: "48. The insolvency Committee of the Ministry of Corporate Affairs, Government of India, in a report published in March 2018, stated that the intent of the IBC could not have been to give a new lease of life to debts which were already time barred. Thereafter Section 238A was incorporated in the IBC by the Insolvency and Bankruptcy Code (Second Amendment) Act, 2018 (Act 26 of 2018), with effect from 6th June 2018. Section 238A provides as follows:- "238A. The provisions of the Limitation Act, 1963 (36 of 1963) shall, as far as may be, apply to the proceedings or appeals before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 right to sue", therefore, accrues when a default occurs. If the default has occurred over three 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." 55. In Radha Export (India) Private Limited v. K.P. Jayaram and Anr. 8 , this Court referred to B.K. Educational Services (P) Ltd. v. Parag Gupta & Associates (supra) and held the application under Section 7 of the IBC to be barred by limitation. 56. In Babulal Vardharji Gurjar v. Veer Gurjar Aluminium Industries Pvt. Ltd. and another 9 , this Court held that limitation of three years as provided by Article 137 of the Limitation Act, which commenced from the date of the default, was extendable under Section 5 of the Limitation Act. 59. It is well settled by a plethora of judgments of this Court as also different High Courts and, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, (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. Section 19. Effect of payment on account of debt or of interest on legacy.-Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made: Provided that, save in the case of payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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