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TMI Blog2021 (11) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... LAW APPELLATE TRIBUNAL, NEW DELHI ] where it was held that Article 137 of the Limitation Act shall be applicable for an Application filed under Sections 7, 9 or 10 of the I B Code. Since the account of the Corporate Debtor was classified as NPA on 29th January 2013. Therefore, default started on 29th January 2013 and three years period of limitation was available for applying u/s Section 7 of the Code - thus, a fresh period of limitation of three years started w.e.f. 01st June 2016 in terms of Section 18 of the Limitation Act. Thus it is clear that the petition filed under Section 7 of the Code on 29th September 2018 is well within limitation. The term Without prejudice to the rights and contentions of the Corporate Debtor does not negates the admission of the liability of the debt. Acknowledgement of liability under Section 18 of the Limitation Act, 1963 itself demands a broader interpretation to serve the ends of justice - it is opined that OTS shall constitute a valid acknowledgement under Section 18 of the Limitation Act, 1963. Petition admitted - moratorium declared. - CP (IB) 393 (ND)/2021 - - - Dated:- 15-11-2021 - Abni Ranjan Kumar Sinha, Member (J) and Avina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te per annum towards Term Loan-II. iv. That as per the covenants of Term Loan Agreement I and II, the Corporate Debtor was required to foreclose both Term Loan-I as well as Term Loan-II on or before June 2019. The copy of the Loan Agreements dated 28.07.2009 and 08.01.2011 are enclosed alongwith the application and are collectively marked as Annexure A/5 (Colly). v. That the total amount claimed as per the statement of claim as on 30th June, 2021 is ₹ 152,69,04,865/-. Consolidated statement of account as on 30.06.2021 is annexed as Annexure-A/6 (Colly) vi. That the Corporate Debtor admittedly failed to adhere to the terms of payment as per loan agreement. Therefore, the account of the Corporate Debtor was declared as a Non-Performing Asset on 31.12.2011. vii. That the Bank vide demand notice dated 11.06.2012 (annexed as Annexure A/7), issued under Section 13(2) of SARFAESI Act, 2002, demanded total amount of default as on 11.06.2012 of ₹ 79,93,84,596 (Rupees Seventy-Nine crore Ninety-Three lakhs Eighty-Four thousand Five hundred and ninety-six only). viii. That Bank of Baroda vide Deed of Assignment dated 13.03.2013 duly assigned, under Section 5 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability towards the Financial Creditor, annexed as Annexure- A/20. xiii. Applicant has placed catena of judgements by various courts of the country to substantiate his point regarding the extension of the limitation period wherein it was held that the entry in the Balance sheet constitutes a valid acknowledgment as well as OTS proposal also constitutes a valid acknowledgement of liability of debt under Section 18 of The Limitation Act, 1963 4. Submissions made on behalf of the Corporate Debtor in the facts and circumstances of the case are: i. That the present Application filed by the Financial Creditor is barred by time and is liable to dismissed. To substantiate his contention, Corporate Debtor mentioned various which are: a. Account of the Corporate Debtor was classified as NPA on 31.12.2011 and period of limitation would expire on 30.12.2014 but before the expiry of the limitation period, Corporate Debtor made the payments of ₹ 15 crore from 06.03.2014 till 13.08.2014 and thus the period would stand extended till 12.08.2017. However, Corporate Debtor submitted that they have made the payment pursuant to the order of the DRT and the said payments were mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposal and there is settled law as declared by Hon'ble NCLAT in the matter of Manesh Agarwal Vs Bank of India and Anr. (Company Appeal 1182/2019). 7. We are of the opinion that, the term Without prejudice to the rights and contentions of the Corporate Debtor does not negates the admission of the liability of the debt. Acknowledgement of liability under Section 18 of the Limitation Act, 1963 itself demands a broader interpretation to serve the ends of justice. That is why Section 18(2)(a) of the Limitation Act states that: 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 setoff, or is addressed to a person other than a person entitled to the property or right . 8. In the landmark Case of Shesh Nath Singh Vs Baidyabati Sheoraphuli Cooperative Bank Ltd. Anr. LL 2021 SC 177wherein, the Apex Court held that (Para 102): In any case, Section 5 and Section 14 of the Limitation Act are not mutually exclusive. Even in a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 31 or passes an order for liquidation of corporate debtor under section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. 12. The Financial Creditor has proposed the name of Mr. Nilesh Sharma R/o -10, LGF, Lajpat Nagar-III, New Delhi-110024 having Email: [email protected] and Registration No. : IBBI/JPA-002/IP-N00104/2017-18/10232, duly empanelled with the IBBI as the Interim Resolution Professional ( hereinafter referred to as IRP ). Written Communication by proposed Interim Resolution Professional in accordance with Rule 9(1) of Insolvency and Bankruptcy (Application to Adjudicating Authority), Rules, 2016 has been annexed as Annexure A/4. Therefore, he is appointed as IRP in this matter and directed to take such steps as are mandated under the Code, more specifically under Sections 15, 17, 18, 20 and 21 and shall file his report before the Adjudicating Authority. 13. The Financial Creditor is directed to deposit a sum of ₹ 2 lakh to meet the immediate expenses of IRP. The same shall be fully accountable by the IRP and shall be reimbursed by the Committee of Creditors, to the Financi ..... 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