9911796707
TMI Blog2022 (4) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... an amount of Rs. 10 crores and executed an 'Associateship Agreement' dated 23.09.2008 which was validated till June, 2012. On 30.06.2013 an Addendum No.1 was again executed between the parties, by which the Financial Creditor provided credit facilities to the tune of Rs. 16 crores. The validity of the Associateship Agreement was till 31.12.2014 or till such time as the Associate/Corporate Debtor fulfils its obligations to the satisfaction of the 'Financial Creditor'. According to Clause 4 of the 'Associateship Agreement' of 2012, the Financial Creditor would finance 75% of the value of the stocks pledged in its favour. Accordingly, the Corporate Debtor created a pledge of appropriate value in favour of the Financial Creditor by way of executing multiple Deeds of Pledge. 3. Submissions on behalf of the Learned Counsel for the Appellant. The Learned Counsel for the Appellant contended that the 'Adjudicating Authority has erroneously dismissed the Section 7 Application on the ground of Limitation without taking into consideration that the Respondent had, on several occasions for the period commencing from 2013 to 2017 acknowledged its liability to repay the amount of credit facilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Overseas Bank and Ors. MANU/NL/0276/2020 g) Lakshmirattan Cotton Mills co Ltd and Ors Vs The Aluminimum Corporation of India Ltd AIR 1971 SC 1482 h) Mahavir Spinning Mills Ltd Vs HB Leasing and Finances Co Ltd 199(2013) DLT 227 i) Dena Bank Vs C Shivakumar Reddy and Ors MANU/sc/0502/2021 j) Asset Reconstruction Company (I) Ltd Vs Bishal Jaiswal and Ors MANU/SC/0279/2021 k) Suo Moto Writ Petition (C) No.3/2020 Order dated 10.01.2022 The Sole Respondent was issued Notice on 01.06.2021 and was directed to file Reply within four weeks. The Office Report specifies that Notice were sent through email and Speed Post. The Notice vide email was delivered but the Notice issued through Speed Post was received back. Affidavit of Service on behalf of Appellant was filed on 17.08.2021. The matter was taken up again on 10.08.2021. None appeared for the Respondent. On 13.09.2021, on perusal of the Service Affidavit filed by the Appellant herein, this Tribunal noted that the Appellant had complied with the order dated 10.08.2021 and appropriate steps were taken up by the Appellant on 03.06.2021. Further, on 17.08.2021 by way of an email ID [email protected], on their registe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is mentioned at page 8 of the application but it is not mentioned when the Corporate Debtor had handed over the cheques to the petitioner. Therefore, so far the contention of the petitioner regarding the part payment of the amount, and claim of the petitioner under Section 19 of the Limitation Act is concerned, in the absence of specific date of receiving the cheque or receiving the part payments in the form of cheque, specially when it is mentioned in the reply that undated cheques were handed over, it cannot be accepted that the part payment was made on the date, which appears in the cheques. 30. Apart from that, in the case of Yogesh Kumar Jaswantlal Thakkar Vs Indian Overseas Bank and Ors reported in MANU/NL0341/2020 passed by Hon'ble NCLAT, Hon'ble NCLAT held that Section 19 of the Limitation Act is not applicable so far the IBC is concerned. 31. Now coming to Section 18 of the Limitation Act, the petitioner contended that since it is mentioned in the reply dated 18.03.2017 that he is ready to settle the statement of accounts, which amounts to the acknowledgement of debt, therefore, at this juncture, we would like to refer to agreement on the basis of which the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .07.2012 is signed on 30.06.2013 between the Financial Creditor and the Corporate Debtor wherein it is clearly stated that an amount of Rs. 16 crores would be lent on a rotational basis and the validity in Clause 19 shall be read as under:- "This agreement shall be valid till 31.12.2014 or till such time as the Associate fulfils its obligation to the satisfaction of PEC, whichever is later." 8. From the aforenoted terms, it is clear that the Agreement shall be valid till 31.12.2014. The Section 7 Application was filed on 10.06.2020. At this juncture, we find it relevant to reproduce letter dated 18.11.2015 addressed by the Corporate Debtor to the Financial Creditor acknowledging that an amount of Rs. 20,58,29,912/- is payable as on 06.08.2015. 9. It is the case of the Learned Counsel for the Appellant that in the legal notice dated 02.03.2017 issued under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of the four cheques there was a clear acknowledgement that in a Meeting held on 23.09.2016 a road map was discussed for repayment of the dues. The Learned Adjudicating Authority has not taken this acknowledgement into consideration observing that the legal notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PEC Ltd. d) It is further stated that M/s PEC Limited has never doubted or refuted any of the issues brought up by Our client No.1, be it the slow down of the industry, falling prices of sponge iron, or the intention of our Client No.1 to repay all our dues as arising under the agreement dated 01.07.2012. e) It is further stated that as recently as 23.09.2016, a Meeting was held at PEC office, where a road map was discussed for repayment of the dues, and Our Client No.1 had agreed to give working proposals once again for repayment of dues. In the said meeting, our Client No.1 had requested M/s PEC Limited not to pursue any legal or punitive proceedings as that would distract from the legitimate efforts being made to repay dues." 11. In the aforenoted Reply to the Legal Notice there is a clear admission of the debt and also refers to the Meeting took place on 23.09.2016 where some deliberations were made for repayment of the dues. 12. It is significant to mention that the Appellant herein has filed Balance Sheets before the Adjudicating Authority reflecting the amounts due and payable by the Respondents. The Learned Adjudicating Authority has recorded the same in para 26 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veral judgments of this Court, this legal position has been accepted. In Daya Chand Uttam Prakash Jain V Santosh Devi Sharma 67 (1997) DLT 13, S.N. Kapoor J. applied the principle in a case where the primary question was whether a suit under Order 37 CPC could be filed on the basis of an acknowledgement. In Larsen & Toubro Ltd V. Commercial Electric Works 67 (1997) DLT 387 a Single Judge of this Court observed that it is well settled that a balance sheet of a company, where the defendants had shown a particular amount as due to the plaintiff, would constitute an acknowledgement within the meaning of Section 18 of the Limitation Act.In Rishi Pal Gupta V S.J. Knitting & Finishing Mills Pvt Ltd. 73 (1998) DLT 593, the same view was taken. The last two decisions were cited by Geeta Mittal, J. in S.C. Gupta v. Allied Beverages Company Pvt. Ltd. (decided on 30/4/2007) and it was held that the acknowledgement made by a company in its balance sheet has the effect of extending the period of limitation for the purposes of Section 18 of the Limitation Act. In Ambika Mills Ltd Ahmedabad V. CIT Gujarat (1964) 54 ITR 167, it was further held that a debt shown in a balance sheet of a company amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant that the default amounts are reflected in the balance sheets, the Adjudicating Authority has not considered the aforenoted ratio of the Hon'ble Supreme Court in 'Asset Reconstruction Company (India) Limited Vs. Bishal Jaiswal and Anr.' , wherein the Hon'ble Supreme Court has laid down that Acknowledgement in the balance sheet construes Acknowledgment under Section 18 of the Companies Act, 1963. 15. Having regard to the letter dated 18.11.2015 which acknowledges the debt amount due and payable to the tune of Rs. 20,58,29,912/-; the cheques dated 23.02.2017 issued by the Corporate Debtor to the Appellant herein for an amount of Rs. 16 crores which has been dishonoured; the acknowledgement of debt in the Reply issued by the Corporate Debtor dated 18.03.2017 which establishes the jural relationship between the parties as envisaged by the Hon'ble Supreme Court in the Case of 'Dena Bank (Now Bank of Baroda) Vs. C. Shivakumar Reddy & Anr.'; and specifically the acknowledgment in the Balance Sheets in the Impugned Order which extends the limitation by three years, this Tribunal is of the earnest view that the Respondent has clearly acknowledged the 'Debt' due and payable to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
