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TMI Blog2024 (9) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, Hon ble Supreme Court held that a fresh period of Limitation be required to be computed from the time when the acknowledgement so signed by the Principal Borrower or the Corporate Guarantor. The Hon ble Supreme Court in several cases has laid down that acknowledgement under Section 18 has to be liberally construed and the intention of the Party writing acknowledgement has to be looked into to find out as to whether debt is acknowledged or not. The Letter contains clear acknowledgment of debt and Adjudicating Authority did not commit an error in giving the benefit of Section 18 of the Limitation Act. When the letter dated 12.06.2017 is treated to be acknowledgement, Limitation of three years will expire on 11.06.2020 and the period from 15.03.2020 to 25.03.2021 directed to be excluded by Hon ble Supreme Court by its Order passed in Suo Motu Writ Petition No. 03/2020 [ 2021 (3) TMI 497 - SC ORDER] , Application filed on 30.09.2021 was well within time and Adjudicating Authority has rightly overruled the objection of the Appellant that Application is barred by time. There are no error in the Order of the Adjudicating Authority, holding that Application is well within time - appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Personal Guarantors to Corporate Debtor), Rules, 2019 to the Appellant and thereafter filed a C.P. 1264/2021 under Section 95. viii. Adjudicating Authority on 19.04.2022, appointed Rajendra R. Agarwal as a Resolution Professional (`RP ). On 07.05.2022, RP filed a Report under Section 99 of the IBC. Appellant also filed his Affidavit pointing out various discrepancies in the proceedings. Adjudicating Authority, heard the Company Petition and by Order dated 07.06.2024, admitted Section 95 Application. ix. Aggrieved by which Order, this Appeal has been filed. 3. We have heard, Learned Counsel for the Appellant and Learned Counsel for the Respondent. 4. Learned Counsel for the Appellant have challenged the Order on the ground that Application filed by Financial Creditor under Section 95 was barred by time. It is submitted that Bank Guarantee issued by the Appellant in favour of the Financial Creditor was invoked by Letter dated 17.01.2017, hence, three years period of Limitation expired on 16.01.2020 and the Application filed on 30.09.2021 under Section 95 was clearly barred by time and deserves to be rejected. It is submitted that Adjudicating Authority committed error in relying on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 set off, or is addressed to a person other than a person entitled to the property or right, (b) the word signed means signed either personally or by an agent duly authorised in this behalf, and (c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right. 8. It is well settled that acknowledgement whether by Borrower or by Guarantor has effect of extending the limitation under Section 18 of the Limitation Act. The above proposition was laid down by the Hon ble Supreme Court in the matter of `Laxmi Pat Surana Vs. `Union Bank of India Anr. , reported in (2021) 8 SCC 481. In Paragraph 48 of the Judgment, Hon ble Supreme Court held that a fresh period of Limitation be required to be computed from the time when the acknowledgement so signed by the Principal Borrower or the Corporate Guarantor. Paragraph 48 of the Judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in the statutes following observations were made in Para 9 : 9. It is clear that the statement on which the plea of acknowledgment is founded must relate to a subsisting liability as the section requires that it must be made before the expiration of the period prescribed under the Act. It need not, however, amount to a promise to pay, for, an acknowledgment does not create a new right of action but merely extends the period of limitation. The statement need not indicate the exact nature or the specific character of the liability. The words used in the statement in question, however, must relate to a present subsisting liability and indicate the existence of jural relationship between the parties, such as, for instance, that of a debtor and a creditor and the intention to admit such jural relationship. Such an intention need not be in express terms and can be inferred by implication from the nature of the admission and the surrounding circumstances. Generally speaking, a liberal construction of the statement in question should be given. That of course does not mean that where a statement is made without intending to admit the existence of jural relationship, such intention shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansukhani R/o-17, Joy Builders Colony, Saket Nagar, Indore, Madhya Pradesh Sir/Madam Re: NOTICE U/s 13(2) OF THE SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENCORCEMENT OF SECURITY INTEREST ACT 2002 ( SARFAESI ACT ) 1. You are aware that STCI Finance Limited (Herein after referred to as Financial Institution) has granted credit facility for an amount of Rs.10,00,00,000/ (Rupees Ten Crore Only) to Man Tubinox Limited(Borrower 1) Man lnfraprojects limited(Borrower 2) (Principal Debtors), for which You No 1 stood as guarantor and executed letter of guarantee dated 01/12/2015 and You No. 2 stood as guarantor and executed letter of guarantee dated 08/02/2016 guaranteeing the due repayment of the said amount by the Principal Debtor and all interest, cost, charges and expenses due and accruing thereon. The details of credit facility granted by financial institution and the amounts outstanding dues thereunder as on the date of notice : Name of Facility Sanctioned Limit Outstanding Dues a. Corporate Loan against property Rs. 10,00,00,000/- Rs. 7,00,00,000/- towards Principal towards Interest (Upto 31/05/2017) Rs.33,80,553/- Rs. 7,33,80.553/ 2. As the principal debtor has defau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant that Application is barred by time. In paragraph 14 of the Judgment Adjudicating Authority has made following observations: 14. On the aspect of Limitation, the Financial Creditor drew to the attention of the Bench to letter dated 12.06.2017 of Mr. Jagdish Mansukhani stating that they were at an advanced stage of discussion with the number of lenders and expect to closeyour loan shortly. You are therefore requested to grant time till July 31,2017 and withhold any further actions under the said notice/SARFAESI Act . The Financial Creditor also relied on the decision of the Hon ble Apex court in the case of Food Corporation of India versus Assam state Cooperative Marketing Consumer Federation Limited and others wherein it was held that an acknowledgement of liability made in writing has the effect of commencing a fresh period of limitation from the date on which the acknowledgement was so signed. The Financial Creditor submitted that the letter of Personal Guarantor admitting the debt thereby starts a fresh period of limitation from 12.06.2017. That the present petition having been filed on 30.09.2021, the same is within the period of limitation in view of the Judgement of Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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