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TMI Blog2023 (1) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... f the case necessary to be noted for deciding this Appeal are: i. The Financial Creditor claimed to have entered into a Loan Agreement with Corporate Debtor on 09.04.2011 for granting Rs. 1.5 Crore repayable on demand. The Financial Creditor claimed to have paid the amount in three tranches on 19.04.2011 a sum of Rs. 56 Lakh, on 02nd May, 2011 a sum of Rs. 75 Lakh and on 19.02.2012 a sum of Rs. 19 Lakh. On 13th August, 2014, notice demanding the repayment of loan was issued by the Financial Creditor. ii. According to the Financial Creditor, the debt fell due on 12.09.2014. Financial Creditor claims to have initiated arbitration proceedings on 22.09.2014 which proceedings were discontinued due to death of arbitrator. Winding up petition being C.P. No. 957/2014 was filed by the Financial Creditor on 11.11.2014 before the High Court of Kolkata. Above Company Petition was claimed to be pending. On 12.02.2018, Section 7 Application has been filed by the Financial Creditor. iii. The Adjudicating Authority issued notice to the Corporate Debtor who filed a Reply to Section 7 Application. In the Reply it was mentioned that the management of the Corporate Debtor was with the Sonthali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s submitted that the amount was disbursed through the bank channel hence Corporate Debtor cannot deny the loan agreement. It is further submitted that present management of the Corporate Debtor who has come in 2016 want to distance from loan taken by the Corporate Debtor through earlier management. There is no ground to doubt the loan transaction. 5. Learned Counsel for the Respondent refuting the submissions of Learned Counsel for the Appellant contends that Application was clearly barred by time. Date of Default having been mentioned in Section 7 Application as 12.09.2014 and Section 7 Application having been filed on 12.02.2018, the Application was clearly barred by time. There was no grounds mentioned in the Application seeking extension of limitation and it was only during the course of argument that Financial Creditor sought to raise arguments based on Section 14 of the Limitation Act. The Company Petition which is sought to be relied on, shall not extend the limitation for the Financial Creditor. The Financial Creditor has filed CP No. 814 of 2014 which was dismissed on 28.10.2014. Thereafter C.P. No. 957/2014 was filed on same cause of action by suppression of facts and af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ials brought on record to extend the benefit of Section 14 of the limitation Act, 1963. The Hon'ble Supreme Court in the matter of "Babulal Vardharji Gurjar Vs. Veer Gurjar Aluminium Industries Pvt. Ltd. & Anr." [2020 15 SCC 1] laid down that question of limitation is essentially a mixed question of law and facts and when a party seeks application of any particular provision for extension or enlargement of the period of limitation, the relevant facts are required to be pleaded and requisite evidence is required to be adduced. The said judgment was delivered by the Supreme Court in reference to IBC, 2016. In paragraph 35.1, following has been stated: "35.1. 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 be developed on behalf of the respondent No. 2 at the later stage cannot be permitted. It remains trite that the question of limitation is essentially a mixed question of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r other cause of like nature, is unable to entertain it. The conditions for exclusion are that the earlier proceedings should have been for the same relief, the proceedings should have been prosecuted diligently and in good faith and the proceedings should have been prosecuted in a forum which, from defect of jurisdiction or other cause of a like nature, was unable to entertain it." 11. Paragraph 21 of the Judgment of Sesh Nath Singh (supra), Hon'ble Supreme Court has noted that High Court has stayed the proceedings under SARFAESI Act on the ground of want of jurisdiction. Paragraph 21 is as follows: "21. The relevant dates reveal that the cash credit account of the corporate debtor was declared NPA with effect from 31.3.2013. Proceedings under the SARFAESI Act commenced on 18-1-2014, when a demand notice was issued under Section 13(2) of the SARFAESI Act. In other words, proceedings were initiated under the SARFAESI Act, 2002, approximately months and 18 days after the date of accrual of the right to issue. The proceedings under the SARFAESI Act, 2002 were stayed by the Calcutta high Court, by an order dated 24.07.2017, on the ground of want to jurisdiction. About 11 months th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is sought to be claimed, it has to be proved that proceedings are prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature is unable to entertain it. Present is not a case where winding up petition filed in the Kolkata High Court was suffering from any defect of jurisdiction or other cause of a like nature. We thus are of the view that foundational fact for taking benefit of Section 14 of the Limitation Act being not laid down by the Financial Creditor, no benefit under Section 14 can be claimed by the Appellant. We thus are in agreement with the view of the Adjudicating Authority that Application filed by the Financial Creditor was barred by time. The Adjudicating Authority has also expressed its doubts over the genuineness of the loan transaction as claimed by the Financial Creditor. Corporate Debtor in its reply has categorically pleaded that in the balance sheet of the financial year 2012-13 of the Corporate Debtor there was no mention of the loan taken from the financial creditor. Further when Rungta Group purchased the shareholding of the Corporate Debtor, there was no mention of debt loan in the balance sheet of the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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