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TMI Blog2021 (6) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Apex Court, in the absence of any pleading or averment in regard to the Date of Default and the acknowledgments being made subsequent to it, has stated that the debt is barred by limitation. As to the facts of the present case, the Financial Creditor, has failed to mention the 'Date of Default' in Part - IV of the Application, let alone any averments being made in relation to the acknowledgment of debt - In order to arrive at a conclusion and in order to ascertain the 'debt' and 'default', the Adjudicating Authority has to come to the conclusion only based upon the documents which are filed by the parties. If the parties fail to file any documents, inspite of opportunity being granted, then the Tribunal is perforce required to arrive at a conclusion based on the documents available on record and cannot arrive at a conclusion on premises and suppositions. The debt as claimed by the Financial Creditor is time barred and the Financial Creditor has failed to place on record any shred of document recognized under the law to substantiate that the debt falls well within the period of limitation - this Adjudicating Authority, based on the document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said loan, on 30.06.2006 the Respondent/Corporate Debtor had executed Guarantee Agreement in favour of Indian Overseas Bank for the repayment of the said Term Loan. Upon failure to repay the due amounts by ADPL, on 31.12.2007, the Indian Overseas Bank classified the account of ADPL as non-performing asset ( NPA ). Thereafter, on 10.02.2015 the Indian Overseas Bank assigned the Term Loan to ARCIL, who is the Financial Creditor herein. 5. Similarly, on 31.01.2006, Oriental Bank of Commerce had sanctioned Term Loan of an amount of INR 30 Crores and on 30.06.2009, it sanctioned Funded Interest Term Loan of INR 2.06 Crores to ADPL and in order to secure the said loan, the Respondent/Corporate Debtor on 10.10.2006 and 30.06.2009 had executed Guarantee Agreements for the repayment of Term Loan and Funded Interest Term Loan respectively, in favour of Oriental Bank of Commerce. Upon failure to repay the due amounts by ADPL, the Oriental Bank of Commerce classified the Term Loan account of ADPL as NPA on 31.08.2007, and the Funded Interest Term Loan account as NPA on 30.09.2009. Thereafter, on 28.03.2014 the Oriental Bank of Commerce assigned both the Term Loan and Funded Interest Ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor. Copy of the Guarantee Agreement dated 30.06.2009 and 06.07.2006 executed by the Corporate Debtor in favour of the Assignor of the Financial Creditor. Copy of the Assignment Agreement dated 28.03.2014 entered into between the Oriental Bank of Commerce and ARCIL. Copy of the Assignment Agreement dated 10.02.2015 entered into between the Indian Overseas Bank and ARCIL. Order dated 31.10.2016 passed by the Debts Recovery Tribunal - II in O.A. No. 430 of 2014 (Old No. 106 of 2012, DRT - I, Chennai) Recovery Certificate issued by DRT in D.R.C. No. 684 of 2016. Copy of the order passed by DRT Chennai in O.A. No. 29 of 2016 filed by the Applicant against the Corporate Debtor. Certificate of Registration of Mortgage dated 30.06.2006 for the limit of ₹ 30 Crores, availed from the Indian Overseas Bank, (Assignor of the Financial Creditor) issued by the Registrar of Companies. Certificate of Registration of Mortgage dated 06.07.2006 for the limit of ₹ 30 Crores, availed from the Oriental Bank of Commerce, (Assignor of the Financial Creditor) issued by the Registrar of Companies Certificate of Registration of Mort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Sachet Infrastructure Ltd. Ors. in Company Appeal (AT)(Insolvency) No. 377 of 2019 dated 29.09.2019 along with the Report of the Insolvency Law Committee (ILC) dated February 2020. In the circumstances, the issue as to whether CIRP can be initiated simultaneously against two Corporate Guarantors or for that matter in relation to the Principal Borrower and Corporate Guarantor as in the present instance, has been put to rest by the Hon'ble NCLAT, by the latter decisions of which, we are bound to follow. 11. Now, coming back to the submissions, the Respondent/Corporate Debtor, after filing of the counter statement, has, without obtaining any leave of this Adjudicating Authority, filed an Additional Counter before this Tribunal on 29.01.2021. By referring to the Additional Counter being filed, the Learned Counsel for the Corporate Debtor submitted that the Financial Creditor has willfully misrepresented in Application that the 'Date of Default' is the date on which the DRT has issued the Debt Recovery Certificate, which goes against the well settled principles of limitation in respect to IBC, 2016. Further, it was also submitted that the Application is also silent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, after filing of the Additional Counter, the Financial Creditor was granted an opportunity to file rejoinder. However, upon verification it is seen that the Financial Creditor has not preferred to file any rejoinder to the Additional Counter being filed by the Corporate Debtor. 15. Heard, the submission made by the Learned Counsel for the parties and perused the files including the pleadings placed on record. Section 3 of the Limitation Act, 1963 states that subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. In the present case, the Corporate Debtor has prima facie set up the Limitation as a defence in the present Application. The Hon'ble Supreme Court in the matter of Babulal Vardharji Gurjar vs. Veer Gurjar Aluminium Industries Pvt. Ltd. Anr. in Civil Appeal No. 6347 of 2019 dated 14.08.2020, while dealing with the aspect of limitation in relation to Applications filed under Section 7 and 9 of IBC, 2016 has held as follows; When Section 238-A of the Code is read with the above-noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present case nor they enure to the benefit of respondent No. 2 for the fundamental reason that in the application made before NCLT, the respondent No. 2 specifically stated the date of default as '8.7.2011 being the date of NPA'. It remains indisputable that neither any other date of default has been stated in the application nor any suggestion about any acknowledgement has been made. As noticed, even in Part-V of the application, the respondent No. 2 was required to state the particulars of financial debt with documents and evidence on record-In the variety of descriptions which could have been given by the applicant in the said Part V of the application and even in residuary Point No. 8 therein, nothing was at all stated at any place about the so called acknowledgment or any other date of default. 33.1. Therefore, on the admitted fact situation of the present case, where only the date of default as '08.07.2011' has been stated for the purpose of maintaining the application under Section 7 of the Code, and not even a foundation is laid in the application for suggesting any acknowledgement or any other date of default, in our view, the submissions sought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal No. 9189 of 2019, has held that the time spent in the SARFAESI proceedings can be excluded in terms of Section 14 of the Limitation Act, 1963 for the purpose of calculating the period of limitation for an Application filed under Section 7 of IBC, 2016. However, even taking into consideration the said fact, it is seen that the India Overseas Bank has filed the O.A. before the DRT - I, Chennai only on 04.06.2012, i.e. after the expiry of almost 5 years from the date of NPA. 19. Further, upon perusal of the Deed of Guarantee dated 30.06.2006 as executed between the Financial Creditor and Respondent/Corporate Debtor, clause 11 therein states as follows; 11. It is also agreed that any admission or acknowledgment in writing by the principal debtor of the amount of indebtedness of the principal debtor in relation to the subject matter of this guarantee or any judgments or award which may be obtained by you against the principal debtor shall be binding on me/us and I/we accept the correctness of any statement of account served on the principal debtor which is duly certified by any Manager or Officer of the Bank, and shall be binding and conclusive as against me/us also, and I/w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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