9911796707
TMI Blog2021 (6) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... settlement dated 09th November, 2015 and there was yet another offer by way of OTS on 29th March, 2016. After the grant of Loan, the Corporate Debtor made default in payment of instalments - Considering the record, the Loan Account of the Corporate Debtor was in default on 27th December, 2014 and if on 29th March, 2016, the Corporate Debtor entered into the OTS as at Annexure A-6 that is in the context of the Debt already due and in default. Date of Default will not shift. The OTS is only an Acknowledgment of debt due and arrangement how the debt in default would be paid. Annexure A-6 has one condition of ₹ 60 Lakh to be deposited immediately . On being asked, Learned Counsel for Appellant states that, not ₹ 60 Lakhs, but part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) of SARFAESI Act, 2002 was issued to the Corporate Debtor when the Loan Account became Non-Performing Assets. The Bank claimed that the date of default was 27th December, 2014. 3. Before the Adjudicating Authority, the Bank claimed outstanding dues of ₹ 16,15,39,662.27 Paise. The Adjudicating Authority heard the defence raised by the Corporate Debtor and after considering the rival assertions admitted the Application under Section 7 of IBC by the Impugned Order dated 20th April, 2021. 4. Thus, the present Appeal. 5. The Learned Counsel for the Appellant has submitted that the Application under Section 7 of IBC could not have been admitted as the date of default mentioned in Part-IV of the Application under Section 7 of IBC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s application is filed on 14.02.2019. It is filed beyond three (03) years from the date of default and it is time barred. He submitted that as per various rulings of the Hon ble Supreme Court, right from the rulings of B.K. Education Society and Others up to the latest case of the Hon ble Apex Court held that a date of default does not shift and if the proceedings under the I B Code is not filed within three years form the date of default, it cannot be entertained as barred by limitation as per the Article 137 of the Limitation Act. He further submitted that Judgment of Hon ble Apex Court in the case of Sesh Nath Singh Anr. Vs. Baidyabati Sheoraphuli Co-operative Bank Ltd. Anr. is not applicable in this proceeding on facts. 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation gets extended upon acknowledgement of debt or not is the point completely been answered by the Hon ble NCLAT in case of Kishanlal Likhmichand Bothra Vs. Cananra Bank. It has been held by Hon ble NCLAT that: 13. Considering above judgment of the Hon ble Supreme Court of India, we have no difficulty to state that Section 18 of the Limitation Act is applicable to proceedings under IBC and that if there is acknowledgement of debt in the balance sheets or the OTS Proposal, the period of limitation would get extended if the acknowledgment is made before the period of limitation expires . 16. Keeping before our sight the above order of Hon ble NCLAT, if we consider the facts in this case, we find that the date of defaul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult on 27th December, 2014 and if on 29th March, 2016, the Corporate Debtor entered into the OTS as at Annexure A-6 that is in the context of the Debt already due and in default. Date of Default will not shift. The OTS is only an Acknowledgment of debt due and arrangement how the debt in default would be paid. Annexure A-6 has one condition of ₹ 60 Lakh to be deposited immediately . On being asked, Learned Counsel for Appellant states that, not ₹ 60 Lakhs, but part of it was paid. 11. We are not accepting the submissions made that Date of Default would have to shift to period post OTS dated 29.03.2016. We keep in view Judgment of Hon ble Supreme Court of India in Sesh Nath Singh Anr. Vs. Baidyabati Sheoraphuli Co-operativ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
