TaxTMI 
TaxTMI 
2020 (10) TMI 1037
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.... Corporate Debtor which amount included interest as on 15th March, 2018. The Appellant claimed that as the operational debt was outstanding and not paid, the Application under Section 9 of Insolvency and Bankruptcy Code, 2016 (IBC - in short) deserves to be admitted. The Appellant claims that before filing Application under Section 9 on 5th March, 2019, Notice under Section 8 of IBC was sent on 10th January, 2019 (Copy of which is at Page - 66). 2. The Respondent filed Affidavit in Reply before the Adjudicating Authority and claimed that the amount claimed was barred by limitation as the Application was filed beyond period of three years of default. The claim of the Appellant that on 28th July, 2016, ledger account of the Operational Creditor with regard to the Corporate Debtor was acknowledged by the authorized representative of the Corporate Debtor, was disputed. The Respondent claimed that the signature claimed on the ledger account was not done by any authorized signatory of the Respondent. Respondent also claimed that Police Complaint dated 20th June, 2019 was filed making allegations of forgery. 3. The Adjudicating Authority after hearing the parties, observed in Para -....
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....rsement on this Annexure - A/4, the learned Counsel for the Appellant referred to the written submissions, which were filed by the Appellant before the Adjudicating Authority (copy of which is at Annexure - A/12 - Page 112 @ 116). The Paragraphs - 12 and 13 of that written submissions may be reproduced:- "12. The Respondent Company has filed an objection raising an Issue of Limitation. It is respectfully submitted that the Applicant has supplied material during the period from 22-09-2015 to 28.12.2015. It is submitted that as per the terms, the amount is to be paid after Fifteen (15) days from the date of respective invoice. It is submitted that the last date of invoice is 28-12-2015. It is submitted that the Respondent Company has acknowledged its liability on 28-07-2016. It is submitted that one Shri Dipen Mukharjee, an employee and representative of the Applicant went to the Office of the Respondent Company at Vapi. The said Representative met Mr. Faruk Qureshi. He gave instruction to his Office to acknowledge the outstanding and the same was done. It is submitted that the period of limitation would start from 28-07-2016 and the present Petition is filed on 05-03-2019. ....
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....thorized to sign and the purported acknowledgement has not been signed by aby of the aforementioned persons. Annexed hereto and marked as "Annexure - I" is the copy of the details of authorised signatory extracted from the MCA website. The applicant is put to strict proof thereof. It is stated and submitted that the Applicant has not explained the delay caused in filing the present application and has failed to file any application for condoning the delay caused in filing the present application. Hence, it is submitted that the captioned application is barred by limitation and is liable to be dismissed." 10. The Reply also claimed that Complaint had been filed regarding alleged forgery, with the Police. 11. When we consider the Application which was filed under Section 9 which is Annexure - A/7 (Page - 75), in Part - V Column - 8, there is reference to conformation letter dated 28.07.2016. However, in the Affidavit attached with the Application under Section 7 (copy of which starts at Page 83) apparently there is no reference as to how this supposed to be acknowledgement came into existence. It was merely stated in Para - 2.6 of the Affidavit attached with the Form as under:-....
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....r order shall not be deemed to be an application in respect of any property or right." 14. It is quite settled that the acknowledgement has to be a conscious acknowledgement of the debt. There could be refusal to pay but it should show that there has been an acknowledgement of the debt outstanding. In the present matter, the endorsement concerned is seriously disputed and even if we are to accept the case of the appellant [portion of which argument we have reproduced (supra)], what it states is that Mr. Dipen Mukharjee - employee and Representative of the Appellant went to the Office of Respondent and met Mr. Faruk Qureshi and the said Faruk Qureshi gave instructions to his Office to acknowledge the outstanding and the same was done. Thus, even the Appellant is not claiming that Mr. Faruk Qureshi signed it. Who signed, nothing is clear. In the facts of the matter, the contention of the Corporate Debtor that the signature is not of Authorized Representative, cannot be simply brushed aside. From side of Operational Creditor, there is no Affidavit regarding how such endorsement was made. Annexure - A/4 does not inspire confidence. 15. We do not find that the Adjudicating Authori....