TaxTMI 
TaxTMI 
2020 (6) TMI 557
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....ng Authority that it is assignee of UCO Bank (The Original Lender). The UCO Bank had extended financial assistance to the Corporate Debtor by way of loan of Rs. 75 Crores, for developing Shopping Mall and Office Complex at Raipur. There was default in repayment of the Loan. Original Application No. 225 of 2013 was filed before Debt Recovery Tribunal, Jabalpur (DRT) which allowed the claim of the Financial Creditor and held that the Corporate Debtor was liable to pay Rs. 85,94,62,955.00 with interest from the date of filing of Original Application dated 28th September, 2013 till realization. The application under Section 7 was filed on the basis of such final order dated 22.10.2016 (Annexure A-5 Page 45) passed by DRT which issued Recovery Certificate in the nature of decree under Section 19(22) of "Recovery of Debts Due to Banks and Financial Institutions Act 1993". 3. Before the Adjudicating Authority, the Corporate Debtor raised dispute of limitation claiming that the loan was made in 2013 and the Application which is filed based on order dated 22.10.2016 was time barred when the Application came to be filed on 07th January, 2019. The Adjudicating Authority however, recorded tha....
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....ate Debtor claimed that the period of 3 years was required to be counted from date of default or when Account became NPA while the Financial Creditor claimed that it should be counted from date of Decree passed by DRT. In that matter also it appears that the Application under Section 7 was based on the date of Decree and order of DRT and default was calculated accordingly. This Tribunal considered provisions of Section 18 of Limitation Act. One ground was raised in that matter to save limitation by relying on Balance-sheet. This is not the ground before us and we are not entering into that aspect. This Tribunal in Judgment of "Sh G Eswara Rao" referred to the Judgments of Hon'ble Supreme Court of India in the matter of "B.K. Educational Services Pvt. Ltd. v. Parag Gupta and Associates", [2019] 11 SCC 633, and Judgement in the matter of "Vashdevo R. Bhojwani v. Abhyudaya Co-operative Bank Limited and Another" [2019] 9 SCC 158. Reference was made to Judgment in the matter of "Jignesh Shah and Another v. Union of India and Another" 2019 10 SCC 750, and portions from the said judgment were reproduced. Similarly a reference was made to Judgment in the matter of "Gaurav Hargovindbhai....
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....Adjudicating Authority (National Company Law Tribunal) has failed to consider the aforesaid fact and wrongly held that the date of default took place when the judgment and Decree was passed by Debts Recovery Tribunal on 17th August, 2018. 28. As noticed above, in absence of any acknowledgement under Section 18 of the Limitation Act, 1963, the date of default/NPA was prior to 2004 and does not shift forward, therefore, the period of limitation for moving application under Section 7 of the I&B Code was for three years, if counted, to be completed in the year 2007. As date of passing of Decree is not the date of default, we hold that the application under Section 7 of the I&B Code was barred by limitation, though the claim may not be barred". 9. Considering the judgment of this Tribunal in "Sh G Eswara Rao", when the present set of facts are seen it is apparent that the judgment applies to the present set of facts also. 10. The Learned Counsel for the Respondent however, submitted that in the judgment of "Sh G Eswara Rao" although this Tribunal referred to the judgment of "Vashdeo R. Bhojwani" (Supra) and reproduced some part of the judgment, there is no discussion of the judgment....
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....f the view that this is a case covered by our recent judgment in "B.K. Educational Services Private Limited v. Parag Gupta and Associates", 2018 (14) Scale 482, para 27 of which reads as follows: - "27. It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. "The right to sue", therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application." 4. In order to get out of the clutches of para 27, it is urged that Section 23 of the Limitation Act would apply as a result of which limitation would be saved in the present case. This contention is effectively answered by a judgment of three learned Judges of this Court in "Balkrishna Savalram Pujari and Others v. Shree Dnya,neshwar Maharaj Sansthan & Others", [1959] supp. (2) 5. C.R. 476. In ....
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....e Court in Para 3 of the judgment laid stress on its findings in Para 27 of the judgment in the matter of "B.K. Educational Services Pvt. Ltd". (Supra). The observations in concluding part Para 4 of the judgment, have been made by the Hon'ble Supreme Court as it appears that the Financial Creditor in the matter in order to save limitation claimed that Section 23 of the Limitation Act would apply and the limitation would be saved. The Hon'ble Supreme Court in such context appears to have referred to judgment of Hon'ble Supreme Court in the matter of "Balakrishna Savalram Pujari Waghmare" (Supra) and reproduced part of Paragraph from that judgment. Perusal of that judgment in the matter of "Balakrishna Savalram Pujari Waghmare" shows that the Appellants therein had been claiming right of hereditary worshipers at "Shree Dhyaneshwar Maharaj Sansthan, Alandi" and had dispute with the Trustees of the Said Sansthan. That judgment shows there were various litigations between the parties. In that context, the question of limitation was discussed in Para 31 of that judgment. That judgment is dated 26th March, 1959 and Article 120 referred in Para 31 of that judgment was naturall....
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.... from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterized as continuing wrongs that Section 23 can be invoked. Thus, considered it is difficult to hold that the trustees ' act in denying altogether the alleged rights of the Guravs as hereditary worshippers and in claiming and obtaining possession from them by their suit in 1922 was a continuing wrong. The Decree obtained by the trustees in the said litigation had injured effectively and completely the appellants' rights though the damage caused by the said Decree subsequently continued. Can it be said that, after the appellants were evicted from the temple in execution of the said decree, the continuance of their dispossession was due to a recurring act of tort committed by the trustees from moment to moment? As soon as the decree was passed and the appellants were dispossessed in executio....