2022 (8) TMI 324 - AT - Insolvency and Bankruptcy

Acknowledgment of debt in balance sheets saves application from limitation; exclusion of BIFR period considered. Appeal allowed.

The application was not barred by limitation due to the acknowledgment of debt in the balance sheets and the exclusion of the period during which the ... Initiation of CIRP - Period of limitation - Date of default / NPA is 14 years old - NCLT admitted the application - ongoing default of the corporate debtor under the NCD Facility and suspension of the legal proceedings under SICA and acknowledgment made under the Balance Sheet - Application has been filed after 14 years from the date of default occurred and hence it is hopelessly time barred in view of the provisions of Limitation Act, 1963 - HELD THAT:- It is pertinent to mention that the Respondent continuously in all its Balance Sheets from the year ending 2004-05 till 2016-17 has disclosed and acknowledged the outstanding liability owed by the Respondent to the Appellant. Hence the admission and disclosure of liability in the Balance Sheet of the Corporate Debtor is to be treated as an acknowledgement under Section 18 of the Limitation Act, 1963 which further enlarges and extends the period of limitation and hence the order of Adjudicating Authority is grossly erroneous in this aspect that the Section 7 Petition of the Appellant is barred by limitation especially when the Corporate Debtor voluntarily disclosed and acknowledged the liability towards the appellant. In various cases, the Hon’ble Apex Court has already settled the law that Balance Sheet dues so reflected appropriately in the Balance Sheet and that too a duly audited Balance Sheet will act as an acknowledgment of debt under Section 18 of the Limitation Act, 1963 & hence initiation of CIRP is permissible under Section 7 of the “Code”. Keeping in mind the provisions of the Code & law laid down on the subject, it is not in dispute that the dues of the CD are falling within the provisions of Section 18 of the Limitation Act and since debt and default is not in dispute & dues are payable in fact & law & is in accordance with the provisions of the Code, so Section 7 of the Code is attracted - appeal allowed. Issues Involved:1. Whether the application was barred by the Limitation Act, 1963.2. The applicability of Section 18 of the Limitation Act, 1963 concerning the acknowledgment of debt in the balance sheets.3. The impact of the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA) proceedings on the limitation period.Detailed Analysis:1. Limitation Act, 1963:The primary issue was whether the application filed by the financial creditor was time-barred under the Limitation Act, 1963. The Adjudicating Authority observed that the application was filed after 14 years from the date of default, making it 'hopelessly time-barred' and hence not maintainable. The Hon'ble Supreme Court's judgment in 'B.K. Education Services Private Limited Vs. Parag Gupta and Associates' was cited, which held that Article 137 of the Limitation Act applies to applications filed under Sections 7 and 9 of the Insolvency and Bankruptcy Code (IBC). The right to sue accrues when a default occurs, and if the default occurred over three years before the filing date, the application would be barred unless Section 5 of the Limitation Act is applied to condone the delay.2. Acknowledgment of Debt in Balance Sheets:The financial creditor argued that the acknowledgment of debt in the balance sheets extended the limitation period under Section 18 of the Limitation Act. The balance sheets from 2004-05 to 2016-17 disclosed and acknowledged the outstanding liability owed by the corporate debtor. The Hon'ble Supreme Court in 'A V Murthy v. B S Nagabasavanna' held that entries in balance sheets could qualify as acknowledgment for the purposes of Section 18. The balance sheets were signed by the directors, which constituted an acknowledgment of debt, thus extending the limitation period.3. Impact of SICA Proceedings:The appellant contended that the period during which the corporate debtor was under the purview of the Board of Industrial & Financial Reconstruction (BIFR) should be excluded from the limitation period. The corporate debtor was declared a sick industrial company, and the proceedings under SICA were pending until its repeal on 01.12.2016. The period between the BIFR reference date and the BIFR dissolution date should be excluded for calculating the limitation period. Section 22 of SICA suspended legal proceedings, which should be considered while calculating the limitation period.Observations and Judgment:- It was undisputed that IDBI Bank transferred the loan account to the appellant, and the matter was referred to BIFR.- The financial creditor initiated CIRP under Section 7 of the IBC on 07.01.2019.- The balance sheets from 2004-05 to 2016-17 acknowledged the outstanding liability, which constituted an acknowledgment of debt under Section 18 of the Limitation Act.- The Hon'ble Supreme Court's judgments in various cases, including 'B.K. Educational Services Pvt. Ltd. v. Parag Gupta' and 'Dena Bank v. C. Shivakumar Reddy,' established that balance sheet entries act as acknowledgment of debt under Section 18, making the initiation of CIRP permissible under Section 7 of the IBC.Conclusion:The application was not barred by limitation due to the acknowledgment of debt in the balance sheets and the exclusion of the period during which the corporate debtor was under BIFR. The appeal was allowed, and the impugned order was set aside. The proceedings were disposed of with no order as to costs.