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TMI Blog2023 (4) TMI 1256X X X X Extracts X X X X X X X X Extracts X X X X ..... as tried to change the date of default as 31.03.2014 which in fact has been mentioned as the date of NPA. The period of limitation, counted from 31.08.2013 i.e. date of default would continue till 31.08.2016 and shall expire w.e.f. 01.09.2016. The Bank failed to produce any evidence of acknowledgement of debt on the part of the Appellant during the period from 31.08.2013 to 31.08.2016. Whether the date of default can be changed by the Bank? - HELD THAT:- It has been held by the Hon ble Supreme Court in the case of RAMESH KYMAL VERSUS M/S SIEMENS GAMESA RENEWABLE POWER PVT LTD. [ 2021 (2) TMI 394 - SUPREME COURT] that the date of default cannot be changed. It has also been held in the case of LAXMI PAT SURANA VERSUS UNION BANK OF INDIA ANR. [ 2021 (3) TMI 1179 - SUPREME COURT] , BABULAL VARDHARJI GURJAR VERSUS VEER GURJAR ALUMINIUM INDUSTRIES PVT. LTD. ANR. [ 2020 (8) TMI 345 - SUPREME COURT] , B.K. EDUCATIONAL SERVICES PRIVATE LIMITED VERSUS PARAG GUPTA AND ASSOCIATES [ 2018 (10) TMI 777 - SUPREME COURT] and B.K. EDUCATIONAL SERVICES PRIVATE LIMITED VERSUS PARAG GUPTA AND ASSOCIATES [ 2018 (10) TMI 777 - SUPREME COURT] that the period of limitation would be attracted from the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned cash credit limit of the Corporate Debtor to the tune of Rs. 8,50,000/- which was later on enhanced to Rs. 15,54,000/-. According to the Bank, the Corporate Debtor was in default of payment of Rs. 15,22,21,838.58/- including interest calculated as on 01.08.2019. The Bank has also alleged that the directors of the Corporate Debtor executed five separate guarantee agreements on 13.07.2009 and the Corporate Debtor entered into a tripartite inter-se agreement with the Bank and West Bengal Industrial Development Corporation Limited on 16.06.2010 to create hypothecation of the plant and machinery both present and future and collateral security for the facilities. It is alleged that the Corporate Debtor failed to repay the credit facility to the Bank who initiated the proceedings under the SARFAESI Act, 2002 by issuance of a demand notice dated 27.09.2014 under Section 13(2) of the SARFAESI Act, 2002. It is also alleged that the Bank offered OTS (One Time Settlement) under SARAL KARJ BHUGTAN YOJNA to the Corporate Debtor on 23.10.2018 which was duly accepted by the Corporate Debtor on 29.12.2018 and the same was approved by the Bank on 11.01.2019 but the Corporate Debtor failed to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of pleadings on 06.12.2021." 5. Apropos the aforesaid order dated 03.11.2021, the Bank filed the Supplementary Affidavit in which it disclosed the date of default, date on which the payment was received from the Corporate Debtor etc. Para 20 of the Supplementary Affidavit in which the dates have been mentioned is reproduced as under:- "20. A statement showing the series of events for the accounts of the Corporate Debtor maintained with the Applicant Bank:- Saraju Flour Mills Pvt. Ltd. Sl. No. Particulars Date 1. Date of Default 31.08.2013 2. Date of NPA 31.03.2014 3. Date of Representation u/s 13(3) of SARFAESI Act, 2002 21.11.2014 4. Payment received from the CD 29.03.2017 5. Payment received from the CD under OTS Offer SKBY 31.12.2018 6. Further payment received from the CD 22.01.2019 7. Further payment received from the CD 06.03.2019 8. Limitation period ending on 06.03.2022 6. The Adjudicating Authority recorded its findings in Para 21, 22 & 23 of the impugned order for the purpose of holding that the application filed under Section 7 of the Code by the Bank was within limitation, which are reproduced as under:- "21. Upon perusal of the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 137 of the Act is reproduced as under:- Description of suit Period of limitation Time from which period begins to run Any other application for which no period of limitation is provided elsewhere in this division. Three years. When the right to apply accrues. 9. It is further submitted that admittedly the application under Section 7 of the Code has been filed on 18.10.2019 whereas the date of default is given as 31.08.2013 and the period of three years had expired on 31.08.2016. It is further submitted that there has been no acknowledgment in between 31.08.2013 to 31.0.2016 to attract Section 18 of the Act for the purpose of extension of period of limitation. 10. It is further submitted that the Adjudicating Authority has itself observed in para 23 of the impugned order that the balance sheet for the year ending on 2017-18 reflects that the Corporate Debtor has certain short term borrowings but the said balance sheet would not extend the period of limitation in view of Section 18 of the Act because the acknowledgement has to be during the currency of the period of limitation. In this regard, she has referred to Section 18 of the Act which is reproduced as under:- " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .08.2013 in the supplementary affidavit but limitation would trigger from the date of NPA which is specifically mentioned in Form 1 as the date of default. It is further submitted that since the date of default is 31.03.2014, therefore, it will run up to 31.03.2017 and since the Appellant had deposited a sum of Rs. 2.75 Lakh on 29.03.2017 in their account, therefore, the limitation would further extend from 29.03.2017 to 29.03.2020 in view of Section 19 of the Act and as the application under Section 7 of the Code is filed on 18.10.2019, therefore, it has to be taken to have been filed within the period of limitation. He has also submitted that there has been one time settlement (OTS) which was approved and accepted, therefore, the period of limitation would further extend by it. 14. In rebuttal, Counsel for the Appellant has submitted that the Bank is trying to make out a new case in this appeal by referring to the date of NPA dated 31.03.2014, which is mentioned in Part IV, as the date of default because the Bank, on an affidavit, has disclosed the date of default as 31.08.2013 and the date of NPA as 31.03.2014. It is further submitted that the date of NPA is not recognised by l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom that date i.e. 29.03.2017 till 29.03.2020 to bring the application filed under Section 7 of the Code on 18.10.2019 within the period of limitation. 19. The first question is as to whether the date of default can be changed by the Bank? In this regard, it has been held by the Hon'ble Supreme Court in the case of 'Ramesh Kymal Vs. Siemens Gamesa Renewable Power Pvt. Ltd., (2021) 3 SCC 224' that the date of default cannot be changed. It has also been held in the case of Laxmi Pat Surana (Supra), Babulal Vardharji Gurjar (Supra), B.K Educational Services Pvt. Ltd. (Supra) and Jignesh Shah (Supra) that the period of limitation would be attracted from the date when the default occurs and not from the date of declaration of NPA. Therefore, the date of NPA cannot be taken to be the date of default for the purpose of limitation. 20. In so far as, the issue regarding the payment of Rs. 2.75 Lakh on 29.03.2017 by the Appellant in their account is concerned, it has now been well settled by three judge bench of the Hon'ble Supreme Court, in the case of Shanti Conductors Pvt. Ltd. (Supra), that Section 19 would come into play if the payment is acknowledged in the handwriting of, or in a wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation, it does not require that the acknowledgment should also be made within that period. To interpret the proviso in that way would be to import into it certain words which do not occur there. This is the view taken by almost all the High Courts in India and to us it seems to be a proper view to take (See Md. Moizuddin v. Nalini Bala A.I.R. (24) 1937 Cal 284 : I.L.R. (1937) 2 Cal. 137; Lal Singh v. Gulab Rai 55 All 280, Venkata Subbhu v. Appu Sundaram 17 Mad. 92, Ram Prasad v. Mohan Lal A.I.R. (10) 1923 Nag 117 and Viswanath v. Mahadeo 57 Bom. 453. 10. …………………………………If the plaintiff's right of action is apparently barred under the Statute of limitation, O. 7, R. 6, Civil P.C. makes it his duty to state specifically in the plaint the grounds of exemption allowed by the Limitation Act upon which he relies to exclude its operation; and if the plaintiff has got to allege in his plaint the facts which entitle him to exemption, obviously these facts must be in existence at or before the time when the plaint is filed; facts which come into existence after the filing of the plaint cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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