9911796707
TMI Blog2024 (9) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... rantor in this Appeal. 2. Brief facts necessary to be noticed for deciding the Appeal are: i. STCI Finance Ltd. sanctioned a corporate short-term loan of Rs.10 Crores to Man Tubinox Ltd. (Borrower No. 1) and Man Infraprojects Ltd. (Borrower No. 2). ii. The Loan Agreement was executed on 01.12.2015 by the Financial Creditor and Borrower No. 1 and Borrower No. 2. iii. A Deed of Guarantee dated 01.12.2015 was executed by the Appellant in favour of the STCI Finance Ltd. guaranteeing the repayment of the loan. iv. On 17.01.2017, a Notice was issued by the Financial Creditor to the Borrower No. 1 and 2 as well as Guarantors including Appellant demanding the payment of Rs.8,52,72,832/- as on 08.01.2017, together with the interest till payment. v. Another Notice dated 01.06.2017 was issued by Financial Creditor under Section 13(2) of SARFAESI Act, 2002, calling upon the Borrower No. 1 and 2 to make the payment of Rs.7,38,80,553/-. Notice was also endorsed to Personal Guarantors including the Appellant demanding the said amount within seven days of receipt of Notice. vi. The Appellant replied the Notice dated 01.06.2017 vide letter dated 12.06.2017 stating that borrowers are at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to come to an end on 11.06.2020 and in view of the Order of Hon'ble Supreme Court in `Re: Cognizance for Extension Of Limitation' in Suo Motu Writ Petition (Civil) No. 03/2020 period from 15.03.2020 till 25.03.2021 has to be excluded. 6. We have heard Counsel for the Parties and perused the record. 7. The only question which needs to be considered in the present case is as to whether Letter dated 12.06.2017 which was written by the Appellant to the Financial Creditor had effect of extending the Limitation for a period of three years from 12.06.2017 or the Letter cannot be treated an acknowledgement within meaning of Section 18 of the Limitation Act. Section 18 of the Limitation Act contains heading effect of acknowledgement in writing. Section 18 of the Limitation Act provides as follows: "18. Effect of acknowledgment in writing.-(1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding dues and fails to pay the acknowledged debt. Correspondingly, right to initiate action within three years from such acknowledgment of debt accrues to the financial creditor. That however, needs to be exercised within three years when the right to sue/apply accrues, as per Article 137 of the Limitation Act. This is the effect of Section 18 of the Limitation Act. In that, a fresh period of limitation is required to be computed from the time when the acknowledgment was so signed by the principal borrower or the corporate guarantor (corporate debtor), as the case may be, provided the acknowledgment is before expiration of the prescribed period of limitation. Thus, the conclusion reached [Union Bank of India v. Surana Metals Ltd., 2019 SCC OnLine NCLT 9859] by NCLT and affirmed [Laxmi Pat Surana v. Union Bank of India, 2020 SCC OnLine NCLAT 217] by Nclat on the basis of the asservation in the application under Section 7 IBC, read with the relevant undisputed correspondence, is a possible view." 9. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson making the acknowledgment can be both the debtor himself as also a person duly authorised by him to make the admission..." 10. Now we come to the Letter which is sheet anchor of the submission of the Appellant. Letter dated 12.06.2017, which is filed as Annexure A-14 is as follows : "June 12, 2017 To Ms. Archana Bhide STCI Finance Limited A/B1 802, 8th Floor, A-Wing, Mararhon Innova Marathon Nextgen Compound Off. Ganpatrao Kadam Marg Lower Parel (West), Mumbai 400013 Dear Madam, Ref: Notice U/s 13(2) of SARFAESI Act dated June 1, 2017 With reference to your above notice, I wish to inform you that the borrower companies i.e. Man Tubinox Limited (Borrower 1) and man Infraprojects Limited (Borrower 2) are in advance stage of discussion with a number of lenders and expect to close your loan shortly. You are therefore requested to grant time till July 31, 2017 and withhold any further actions under the said notice / SARFAESI Act. Thanking you, Jagdish Mansukhani" 11. It is to be noted that Letter dated 12.06.2017 was written by Appellant in response to the Notice dated 01.06.2017 issued by Financial Creditor under Section 13(2). Notice dated 01.06.2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e only) (contractual dues upto the date of notice) with interest @ 13.75 % p.a with monthly rests plus penal interest @2% together with further interest thereon @13.75% p.a with monthly rests and additional/penal interest @2% from 01st June,2017 till payment/realisation within 7 days of receipt of the notice." 12. By Notice dated 01.06.2017 which was under Section 13(2), the Personal Guarantors were also called upon to discharge their liabilities by paying the financial institutions amount of Rs.7,33,80,553/- thus when letter dated 12.06.2017 was written, it was in reference to the said Notice which is clearly mentioned in the Letter. The Letter thus clearly was in response to the Notice which Letter further mentioned that borrowers are at advance stage of discussion and the loan is expected to be closed shortly and further Financial Creditor were requested to grant time till 31.07.2017. When the letter is read along with the Notice dated 01.06.2017, it is clear that said Letter contain clear acknowledgement of debt with information that borrowers are discussion with the lenders and loan shall be shortly closed and further request was to grant time till 31.07.2017. Thus, the Lette ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
