TaxTMI 
TaxTMI 
2021 (4) TMI 253
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....mitation. Winding up Petition in Limitation/Section 7 also filed-Running Parallel 2. The Appeal claims and it is argued on behalf of the Appellant that the Adjudicating Authority failed to appreciate that much before IBC came into force, the Appellant had duly filed a winding up petition before Hon'ble High Court of Gujarat at Ahmadabad Bench on 07th April, 2015 against default committed by the Respondent of the Financial Debt which became Non- Performing Assets (NPA in short) on 30th November, 2013. During the pendency of the winding up proceedings, the present Application under Section 7 of IBC was filed and subsequently the winding up petition came to be disposed of as withdrawn on 19th August, 2019. According to the Appellant at the High Court after hearing both parties, the Winding up Petition was withdrawn and that the Hon'ble High Court gave liberty to raise the contentions before the Adjudicating Authority. According to the Appellant, the winding up petition was filed within time and Application under Section 7 of IBC was well within Limitation Period and the Adjudicating Authority ignored this fact and dismissed the Petition. The Adjudicating Authority failed to cons....
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....that point of time. Thus, it is argued that the Appellant has right to maintain the Application which was filed under Section 7 of IBC on 15th December, 2017. According to the Appellant, the Respondent raised objections in the Petition under Section 7 of IBC that winding up petition which is pending before the High Court, the Application under Section 7 was not maintainable as there were parallel proceedings. Learned Sr. Counsel submits that in view of such objections raised, the matter was taken up in the High Court and the Hon'ble High Court disposed the winding up proceedings as withdrawn with liberty to pursue the remedy of Application under Section 7 of IBC which was already filed. Thus the Appellant claims that the Adjudicating Authority erred in dismissing the Application as time-barred. 4. Against this, Learned Counsel for the Respondent relied on Judgment in the matter of "B.K. Educational Services Pvt. Ltd. Vs. Parag Gupta Associates [(2018) SCC ONLINE SC 1921]" to submit that Hon'ble Supreme Court has held that under the Article 137 of the Limitation Act, the Application under IBC is required to be filed within three years of the date of default or else the same would....
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.... up by the parties. It would be appropriate to make brief reference to record depicting facts and developments, before considering the law on the subject. Broadly - The facts & Developments 7. Respondent-Nagaur Water Supply Company Pvt. Ltd. availed financial facilities from lenders M/s. L & T Infrastructure Finance Pvt. Ltd. vide agreement dated 14th June, 2011 for an amount of Rs. 40 Crores which was to be repaid in 10 years by way of 120 structured monthly installments with interest of 13% per annum for the purpose of securitization of project receivables of Desalination and Water Supply Project implemented by Respondent- NWSCPL at Rajasthan. The outstanding due was Rs. 74,22,55,644/- on 30th November, 2017. The Appellant acquired the Financial Debt from M/s. L&T Infrastructure Finance Company Ltd. vide assignment agreement dated 30th December, 2013 (Annexure A10-Page 158). The Appellant gave winding up notice (Annexure A13-Page 200) on 09th January, 2015 to the Respondent under Section 434 (e) and Section 434 of the Companies Act, 1956 (Old Companies Act- in short) claiming Rs. 40,42,00,020/-. Subsequently, on 07th April, 2015 winding up petition C.P. No. 127 of 2015 (Ann....
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....t relies on Section 19 of Limitation Act also. Reference was also made to the Balance-Sheet put on record to show that the dispute was within Limitation. The Order of Withdrawal in High Court Dated 19.08.2019 The Appellant refers to subsequent order passed by the Hon'ble High Court of Gujarat disposing the winding up petition. Copy of the Order dated 19.08.2019 is at (Annexure A24-Page 398). The Order reads as under: "According to learned advocate for the petitioner, the petitioner has already approached NCLT in a petition being NCLT No. [(P.(I.B.)]/5/2018 for the relief which is sought in this petition and also for other reliefs and therefore, it no longer desires to continue this petition. Upon instructions, thus Mr. Anip A. Gandhi, learned advocate for the petitioner seeks permission to withdraw this petition. Permission, as prayed for, is granted. This petition stands disposed of as withdrawn, without entering into the merits of the matter. This Court has not adjudicated this petition and both the sides are open to raise all factual and legal contentions raised in this petition. Withdrawal of this petition shall not come in the way of the petiti....
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....me Court observed in Paragraphs 7 to 12 of the Judgment as under: "7. At this stage, it is important to advert to some of the provisions contained in the Code. Section 255 of the Code reads as under: "255. Amendments of Act 18 of 2013.- The Companies Act, 2013 shall be amended in the manner specified in the Eleventh Schedule." 8. In pursuance of this Section, the Eleventh Schedule to the Code made various amendments to the Companies Act, 2013 on 15.11.2016 with effect from 01.12.2016. Section 434 of the Companies Act, 2013 was substituted as follows:- "434. Transfer of certain pending proceedings.- (1) On such date as may be notified by the Central Government in this behalf,- (a) all matters, proceedings or cases pending before the Board of Company Law Administration (herein in this section referred to as the Company Law Board) constituted under sub-section (1) of Section 10-E of the Companies Act, 1956, immediately before such date shall stand transferred to the Tribunal and the Tribunal shall dispose of such matters, proceedings or cases in accordance with the provisions of this Act; (b) any person aggrieved by any de....
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....d by sufficient cause from filing an appeal within the said period, allow it to be filed within a further period not exceeding sixty days; and (c) all proceedings under the Companies Act, 1956, including proceedings relating to arbitration, compromise, arrangements and reconstruction and winding up of companies, pending immediately before such date before any District Court or High Court, shall stand transferred to the Tribunal and the Tribunal may proceed to deal with such proceedings from the stage before their transfer: Provided that only such proceedings relating to the winding up of companies shall be transferred to the Tribunal that are at a stage as may be prescribed by the Central Government: Provided further that only such proceedings relating to cases other than winding up, for which orders for allowing or otherwise of the proceedings are not reserved by the High Courts shall be transferred to the Tribunal: Provided also that- (i) all proceedings under the Companies Act, 1956 other than the cases relating to winding up of companies that are reserved for orders for allowing or otherwise such proceedings; or (ii) the pro....
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....h in accordance with Part II of the code: Provided that the petitioner shall submit all information, other than information forming part of the records transferred in accordance with Rule 7, required for admission of the petition under Sections 7, 8 or 9 of the Code, as the case may be, including details of the proposed insolvency professional to the Tribunal within sixty days from date of this notification, failing which the petition shall abate." 11. Simultaneously, on the same date, by the Companies (Removal of Difficulties) Fourth Order, 2016, it was made clear in sub-Clause 2 of the said Order as follows:- "(2) In the Companies Act, 2013, in Section 434, in sub- section (1), in clause (c), after the proviso, the following provisos shall be inserted, namely:- "Provided further that - xxx xxx xxx (ii) the proceedings relating to winding up of companies which have not been transferred from the High Courts; shall be dealt with in accordance with provisions of the Companies Act, 1956 and the Companies (Court) Rules, 1959"" 12. By a Notification dated 29.06.2017, titled the Companies (Transfer of Pending Proceedings) Sec....
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.... first step, when the Code was enacted, only winding up petitions, where no notice under Rule 26 of the Companies (Court) Rules was served, were to be transferred to the NCLT and treated as petitions under the Code. However, on a working of the Code, the Government realized that parallel proceedings in the High Courts as well as before the adjudicating authority in the Code would stultify the objective sought to be achieved by the Code, which is to resuscitate the corporate debtors who are in the red. In accordance with this objective, the Rules kept being amended, until finally Section 434 was itself substituted in 2018, in which a proviso was added by which even in winding up petitions where notice has been served and which are pending in the High Courts, any person could apply for transfer of such petitions to the NCLT under the Code, which would then have to be transferred by the High Court to the adjudicating authority and treated as an insolvency petition under the Code." 13. What appears is that when Section 434 was amended and sub-clause c of Clause 1 provided that ALL proceedings under the Companies Act, 1956 inter alia including proceedings relating to winding-up of a ....
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....arned Counsel for Appellant instead of requesting Hon'ble High Court to transfer the winding-up proceedings, (which were in Limitation) to the Adjudicating Authority withdrew the Petition. We have already reproduced the Order of the Hon'ble High Court above which shows that the intention of the Appellant was to continue with the Lis before the Adjudicating Authority. Thus, the Learned Counsel for the Appellant made statement that the Appellant has already approached the Adjudicating Authority for relief vide C.P. No. 5/2018 (the present matter) and thus did not desire to continue with the Petition in High Court and sought permission to withdraw the Application. The permission, as prayed for, was granted. The Hon'ble High Court recorded that it was open to both-sides to raise all factual and legal contentions and that the withdrawal will not come in the way of the Appellant. The Respondent is trying to take advantage of such development where instead of "transfer", the Appellant "withdrew" the winding-up petition which was filed within Limitation and which was pending when Application under Section 7 was filed. Question is whether it would be justice if the Appellant is punished for....
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.... the matter of "C Shiva Kumar Reddy Vs. Dena Bank and Anr." (Company Appeal (AT) (Insolvency) No. 407 of 2019) to hold that balance-sheet of the Corporate Debtor could not be relied on and calculated three years from the date of NPA and after making reference to Article 137 of the Limitation Act, 1963 it is held that the Application was time-barred. Ref: Judgment of this Tribunal in "Rajendra Narottamdas Vrs. Chandra Prakash" 18. We have earlier dealt with similar averments being made by the parties in present matter with regard to the Limitation. In our Judgment dated 18th December, 2020 passed in Company Appeal (AT) (Insolvency) No. 621 of 2020 in the matter of "Sh. Rajendra Narottamdas Sheth & Anr. Vs. Sh. Chandra Prakash Jain & Anr." we had observed in Paragraphs 22-24 as under: "22. The Learned Counsel for the Appellant has relied on Judgment in the matter of Gaurav Hargovindbhai Dave vs. Asset Reconstruction Company (Civil Appeal No. 4952/2019) (2019 SCC OnLine 1239) to argue that the residuary Article 137 of the Limitation Act shall be applicable to Application under Section 7 of the Code and the time begins to run from the date of default i.e. date of NPA. It....
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.... judgments of NCLT and NCLAT. The existing jurisprudence on this subject indicates that if a law is a complete code, then an express or necessary exclusion of the Limitation Act should be respected. In light of the confusion in this regard, the Committee deliberated on the issue and unanimously agreed that the intent of the Code could not have been to give a new lease of life to debts which are time-barred. It is settled law that when a debt is barred by time, the right to a remedy is time- barred. This requires being read with the definition of "debt" and "claim" in the Code. Further, debts in winding-up proceedings cannot be time-barred, and there appears to be no rationale to exclude the extension of this principle of law to the Code. 28.2. Further, non-application of the law on limitation creates the following problems; first, it re-opens the right of financial and operational creditors holding time-barred debts under the Limitation Act to file for CIRP, the trigger for which is default on a debt above INR one lakh. The purpose of the law of limitation is 'to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or wh....
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....e to debts which are time-barred. Thus, the consideration is whether a given debt is time-barred. It is also clear from the above that for Applications under Section 7 of IBC the Hon'ble Supreme Court found that residuary Article 137 in the Third Division of Limitation Act dealing with "Applications" was the Article applicable. The Judgment shows that if there is delay in filing of Application one has to go to the Sections where Section 5 would apply. Section 5 would be relevant if an Application which is time-barred and extension of prescribed period is sought showing sufficient cause for not filing the Application within prescribed period. 23.4 In subsequent Judgments in the matter of "Gaurav Hargovindbhai Dave" & "Babulal Vardharji Gurjar", it is argued this factum was reiterated that for Section 7 application time begins to run from date of default, i.e. date of NPA and Period of Limitation is three years as prescribed in Article 137 of the Limitation Act. 23.5. Limitation Act, 1963 Part I deals with the short title, extent and commencement of the Limitation Act, 1963 and contains the Definitions. Part II deals with Limitation of Suits, Appeals and Application....
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.... against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. (2) Where the writing containing the acknowledgement is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872, oral evidence of its contents shall not be received. Explanation. - For the purposes of this Section,- (a) 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. 19.....
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....rson, Bank received the payments. Section 19 of the Limitation Act, 1963 is not subject to any qualification/exception that after Account is declared NPA, if the debtor makes payments on account of debt, the Section would not be applicable. The Adjudicating Authority found that there were not merely repayments but also Acknowledgments." Ref: Judgment of this Tribunal in "A. Balakrishnan Vrs. Kotak Mahindra" 20. In the matter of "A. Balakrishnan Vs. Kotak Mahindra Bank Limited & Anr." (Company Appeal (AT) (Insolvency) No. 1406 of 2019) dated 24th November, 2020, we had in paragraph 12 reproduced paragraph 27 of the Judgment in the matter of "B.K. Educational Services Pvt. Ltd. Vs. Parag Gupta and Associates" reproduced supra and discussed as under:- 13. In Judgment dated 18.09.2019 in the matter of Gaurav Hargovind bhai Dave vs Asset Reconstruction Company (I) Ltd. & Anr. (2019) SCC Online SC 1239, the facts of that case show that in that matter of Gaurav Hargovind bhai Dave vs Asset Reconstruction Company (I) Ltd. & Anr. the Respondent No. 2 was declared NPA on 21.07.2011. At that point of time State Bank of India filed two OAs in DRT in 2012 to recover the total deb....
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.... be referred from the Judgment. What appears is that on 20th August, 2009 a Share Purchase Agreement was executed between Multi Commodity Exchange India Ltd. (MCX), Multi Commodity Stock Exchange Ltd. (MCX-SX) and IL&FS whereby IL&FS had agreed to purchase 442 lakh equity shares of MCX Stock Exchange Ltd. from MCX. Pursuant to the Agreement La-Fin Group Company of MCX issued "Letter of Undertaking" on 20th August, 2009 stating that La-Fin or its appointed nominees would offer to purchase from IL&FS the shares of MCX Stock Exchange after a period of one year but before a period of three years, from date of investment. Hon'ble Supreme Court of India observed that on facts, this period of three years would expire in August, 2012. 14.2. It was noticed that IL&FS by Letter dated 03rd August, 2012 exercised the option to sell its entire holding of shares to MCX Stock Exchange and called upon La-Fin to purchase the shares as per the "Letter of Undertaking". On 16th August, 2012 La-Fin replied that it was under no legal or contractual obligation to buy the said shares. 14.3. Subsequent to this, on 19th June, 2013 IL&FS filed suit before Bombay High Court showing cause of ....
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....ions of the Limitation Act apply to applications made under the Code. Winding up Petitions filed before the Code came into force are now converted into petitions filed under the Code. What has, therefore, to be decided is whether the Winding up Petition, on the date that it was filed, is barred by lapse of time. If such petition is found to be time-barred, then Section 238 A of the Code will not give a new lease of life to such a time- barred petition. On the facts of this case, it is clear that as the Winding up Petition was filed beyond three years from August, 2012 which is when, even according to IL&FS, default in repayment had occurred, it is barred by time. 13. Dr. Singhvi relied upon a number of judgments in which proceedings under Section 433 of the Companies Act, 1956 had been initiated after suits for recovery had already been filed. These judgments have held that the existence of such suit cannot be construed as having either revived a period of Limitation or having extended it, insofar as the winding up proceeding was concerned." (Emphasis Supplied) 14.7. The Hon'ble Supreme Court in Paragraphs 13 to 20 of the Judgment in the matter of Jignesh....
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.... "19. It has already been held by the Hon'ble Supreme Court that when there is default and the Account is classified as NPA the time would start running. When this is so, if filing of the suit or filing of OAs did not extend the time, the question is whether consequential issuing of Recovery Certificate would trigger a fresh cause of action for filing Application under Section 7 of IBC. Clearly this is not so keeping in view above Judgments. The Learned Counsel for the Respondent No. 1 appears to be not properly reading the Judgment in the matter of Vashdeo R Bhojwani Vs. Abhyudaya Co-operative Bank Ltd. & Anr. To complete the narration it would be appropriate to reproduce the Judgment as it is, as the same is not very long. The Judgment in the matter of Vashdeo R Bhojwani Vs. Abhyudaya Co-operative Bank Ltd. & Anr. reads as under: "1. In the facts of the present case, at the relevant time, a default of Rs. 6.7 Crores was found as against the Respondent No. 2. The Respondent No. 2 had been declared a NPA by Abhyudaya Co-operative Bank Limited on 23.12.1999. Ultimately, a Recovery Certificate dated 24.12.2001 was issued for this amount. A Section 7 petition was filed....
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....g wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting 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 S. 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...." (At page 496) Follow....
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....unable to accept the submissions that date of NPA was to be ignored and Limitation was to be counted from the date of Recovery Certificate. Even now, for reasons recorded by us in the Judgment of Digamber Bhondwe Vs. JM Financial Asset Reconstruction, when we have revisited the Judgment in the matter of Vashdeo R Bhojwani Vs. Abhyudaya Co-operative Bank Ltd. & Anr. we are unable to agree that the Judgment gives a fresh date to trigger Application under Section 7 of IBC." 22. In this regard, now we have the advantage of Judgment of Hon'ble Supreme Court of India, dated 22.03.2021 in the matter of "Sesh Nath Singh & Anr. Vs. Baidyabati Sheoraphuli Co-operative Bank Ltd. & Anr." (Civil Appeal No. 9198 of 2019). In the said matter, the Account of Corporate Debtor was declared N.P.A. on 31st March, 2013. On 18th January, 2014, Financial Creditor issued notice to Corporate Debtor under Section 13 (2) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, in short) claiming the outstanding liability. Corporate Debtor made representation objecting to the notice. The representation was rejected by the Financial Creditor. Fin....
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....bed. Although, it is the general practice to make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the Court or Tribunal to weigh the sufficiency of the cause for the inability of the appellant/applicant to approach the Court/Tribunal within the time prescribed by limitation, there is no bar to exercise by the Court/Tribunal of its discretion to condone delay, in the absence of a formal application. 64. A plain reading of Section 5 of the Limitation Act makes it amply clear that, it is not mandatory to file an application in writing before relief can be granted under the said section. Had such an application been mandatory, Section 5 of the Limitation Act would have expressly provided so. Section 5 would then have read that the Court might condone delay beyond the time prescribed by limitation for filing an application or appeal, if on consideration of the application of the appellant or the applicant, as the case may be, for condonation of delay, the Court is satisfied that the appellant/applicant had sufficient cause for not preferring the appeal or making the application within such period. Alternatively, a proviso or an Expl....
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.... IBC, is default on the part of the Corporate Debtor, and the provisions of the Limitation Act 1963, as far as may be, have been applied to proceedings under the IBC, there is no reason why Section 14 or 18 of the Limitation Act would not apply for the purpose of computation of the period of limitation. ........................................................................... 92. In other words, the provisions of the Limitation Act would apply mutatis mutandis to proceedings under the IBC in the NCLT/NCLAT. To quote Shah J. in New India Sugar Mill Limited v. Commissioner of Sales Tax, Bihar, "It is a recognised rule of interpretation of statutes that expression used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the Legislature"." Thus, it is clear that Section 18 of the Limitation Act applies. Balance-Sheets-Acknowledgment? 23. With regard to the Balance-Sheets, the Learned Counsel for the Respondent has relied on Judgment of larger Bench in the matter of "V. Padmakumar Vs. Stressed Assets Stabilisation Fund (SASF) & Anr." (Company Appeal (AT) (Insolvenc....
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....operty or right is claimed, a fresh period of limitation shall commence from the time when the acknowledgement was so signed. In an early case, in England, in Jones v. Bellgrove Properties, (1949) 2KB 700, it was held that a statement in a balance sheet of a company presented to a creditor- share holder of the company and duly signed by the directors constitutes an acknowledgement of the debt. In Mahabir Cold Storage v. CIT (1991) 188 ITR 91, the Supreme Court held: "The entries in the books of accounts of the appellant would amount to an acknowledgement of the liability to Messrs. Prayagchand Hanumanmal within the meaning of Section 18 of the Limitation Act, 1963, and extend the period of limitation for the discharge of the liability as debt." In several judgments of this Court, this legal position has been accepted." The Hon'ble High Court then referred to some of the Judgements. 9. In the Judgement in the matter of "Sheetal Fabrics" (supra), Hon'ble High Court of Delhi referred to Judgement in the matter of "In re. Padam Tea Company Ltd." AIR 1974 Calcutta 170 and referred to the said Judgement as under:- "10. Let me first deal with t....
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.... document and perhaps is a separate document but the balance sheet not confirmed or passed by the shareholders at the appropriate meeting and in order to do so it must be accompanied by a report, if any, made by the Directors. Therefore, even though the balance sheet may be a separate document these two documents in the facts and circumstances of the case should be read together and should be construed together. 13. In the same breath, the High Court also explained as to what would constitute an acknowledgement under Section 18 of the Limitation Act by referring to the judgment of the Supreme Court and this discussion would be found in the following passage: "It was held by the Supreme Court in the case of L.C. Mills v. Aluminium Corpn. of India Ltd., (1971) 1 SCC 67 : AIR 1971 SC 1482, that it was clear that the statement on which the plea of acknowledgement did not create a new right of action but merely extended 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 must, however, relate to a present subsisting liability and indicate the existence of a ju....
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....on'ble Supreme Court in "M/s Mahabir Cold Storage Versus C.I.T." (supra) and the legal positon in Para - 17, observed that in several Judgements of the High Court, the legal position has been accepted and added:- "In Daya Chand Uttam Prakash Jain vs. Santosh Devi Sharma 67 (1997) DLT 13, S.N. Kapoor J. applied the principle in a case where the primary question was whether a suit under Order 37 CPC could be filed on the basis of an acknowledgement. In Larsen & Tubro Ltd. v. Commercial Electric Works 67 (1997) DLT 387 a Single Judge of this Court observed that it is well settled that a balance sheet of a company, where the defendants had shown a particular amount as due to the plaintiff, would constitute an acknowledgement within the meaning of Section 18 of the Limitation Act. In Rishi Pal Gupta v. S.J. Knitting & Finishing Mills Pvt. Ltd. 73 (1998) DLT 593, the same view was taken. The last two decisions were cited by Geeta Mittal, J. in S.C. Gupta v. Allied Beverages Company Pvt. Ltd. (decided on 30/4/2007) and it was held that the acknowledgement made by a company in its balance sheet has the effect of extending the period of limitation for the purposes of Section 18 of ....
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....mission on behalf of the debtor that the letter of undertaking was given in the course of negotiations and cannot be held to be an evidence of the acknowledgement of liability of the debtor, apart from being untenable in law, reiterates the attempt to evade liability and must be rejected. The submission that the letter was written without prejudice to the legal rights and remedies available under any law and therefore the acknowledgement or the undertaking has no legal effect must likewise be rejected. This letter is reminiscent of a letter that fell for consideration in Spencer's case as pointed out by Mr. Harish Salve, "as a Rule the debtor who writes such letters has no intention to bind himself further than is bound already, no intention of paying so long as he can avoid payment, and nothing before his mind but a desire, somehow or other, to gain time and avert pressure." It was argued in a subsequent case that an acknowledgment made "without prejudice" in the case of negotiations cannot be used as evidence of anything expressly or impliedly admitted. The House of Lords observed as follows: "But when a statement is used as acknowledgement for the purpose of Se....
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.... in the matter of "Kashinath Sankarappa Wani Vs. New Akot Cotton Ginning &; Pressing Co., Ltd." reported as MANU/SC/0007/1958, while dealing with Resolution of Board of Directors and while considering Balance Sheet with regard to question of limitation, Hon'ble Supreme Court examined the Resolution and also the Balance Sheet and in the context of the facts of that matter came to a conclusion that the Resolution or the Balance Sheet did not help the Appellant. It is not that it was held that for the purpose of limitation, Balance Sheet cannot be considered at all. 33. In the matter of "A.V. Murthy Versus B.S. Nagabasavanna" reported as (2002) 2 SCC 642, while dealing with a complaint under Section 138 of the Negotiable Instruments Act, 1881 when dispute came up whether the cheque drawn was in respect of a debt or liability not legally enforceable, and the Additional Sessions Judge had held that there was error in taking cognizance of the offence, Hon'ble Supreme Court observed in Para - 5 as under:- "Moreover, in the instant case, the appellant has submitted before us that the respondent, in his balance sheet prepared for every year subsequent to the loan advanced by the....
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....) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (9 of 1872). (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. (3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law. (4) Sections 25 and 26 and the definition of "easement" in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend." It is clear that Insolvency and Bankruptcy Code is a special law. Section 238 A of IBC states that the pro....