TaxTMI 
TaxTMI 
2021 (8) TMI 812
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....de ('IBC' for short) by Respondent No. 2 - 'State Bank of India' (Bank- in short) claiming to be 'Financial Creditor'. The Adjudicating Authority after hearing the parties admitted the application and initiated Corporate Insolvency Resolution Process (CIRP). Thus, the present Appeal. 2. In the present Appeal, the Appellant claimed that the debt of the Corporate Debtor was declared NPA on 31st March, 2013 and the Application under Section 7 was filed on 1st February, 2019 and thus the claim was time barred. The Appellant claims that the Adjudicating Authority did not considered judgments of the Hon'ble Supreme Court in the matter of "Jignesh Shah and another vs. Union of India and another - (2019) 10 SCC 750" and "Gaurav Hargovindbhai Dave vs. Asset Reconstructions Company (India) Limited and another - (2019) 10 SCC 572". The Appeal claims that the One Time Settlement (OTS) letters relied on by the Respondent - State Bank of India could not be treated as acknowledgments. It is also claimed that the Corporate Debtor was protected under Section 23 of the Indian Evidence Act, 1872 in so far as the OTS letters were concerned. 3. Against this, the Respondent No. 2 - State Bank of India....
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....be acknowledgement. The Learned Senior Counsel for the Appellant referred to Section 23 of the Indian Evidence Act, 1872. The said section reads as under: "23. In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given. Explanation.-Nothing in this section shall be taken to exempt any barrister, pleader, attorney or vakil from giving evidence of any matter of which he may be compelled to give evidence under section one hundred and twenty-six." 6. The Learned Counsel submits that in view of such Section any admission given in the OTS proposal could not be used in Court of Law. The Learned Counsel submitted that the Adjudicating Authority in the impugned order relied on judgment in the matter of "Gouri Prasad Goenka vs. Punjab National Bank & Ors." - Company Appeal (AT) (Insolvency) No. 28 of 2019 dated 08.11.2019 and judgment in the matter of "Shalini Publicity Creative Pvt. Ltd. vs. Dena Bank" - Company Appeal (AT) (Insolvency) No. 153 of 2019 dated 18.02.2019 to hold that the claim w....
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.... summarised as under: "7. Furthermore, the CD also proposed one time settlement (OTS) offers for consideration by the Banks. The following are the occasions on which OTS offer was considered b/w the Corporate Debtor and Bank thereby extending the period of limitation. i) OTS Proposal 1: 21.11.2016 8. In the said letter dated 21.11.2016 (Pg. 11 of Counter), the CD gave a proposal for immediate settlement. The CD "offered amount of settlement for repayment Rs. 35 Cr." and also stated "keep our commitment to repayment of bank loan", thereby acknowledging debt. ii) OTS Proposal 2: 07.04.2017 9. While giving proposal, the CD stated "kindly finalise the settlement at Rs. 56 Cr." and also "since we are enjoying a loan but asking for settlement, the question of payment of interest of settlement, if any, need not arise. But in case of failure in future for repayment as per our commitment the interest can be imposed" (@Pg.19 of Counter), thereby acknowledging the debt. 10. The said proposal was rejected by the Bank vide letter dated 15.05.2017. However, the CD was given opportunity to submit higher and acceptable offer. (@Pg.21 of Counter) iii) OTS Proposal 3: 16.05.2017 & ....
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....tter of "Dena Bank vs. C. Shivakumar Reddy & Anr.", Civil Appeal No. 1650 of 2020 dated 04.08.2021, where the Hon'ble Supreme Court considered following issues: "23. The issue which arises for consideration of this Court, in this appeal is, whether the NCLAT has erred in law in arriving at the conclusion that, the Petition filed by the Appellant Bank under Section 7 of the IBC was barred by limitation, and setting aside the order dated 21st March 2019 passed by the Adjudicating Authority, admitting the said Petition. 24. In other words, the main question involved in this appeal is, whether a Petition under Section 7 of the IBC would be barred by limitation, on the sole ground that it had been filed beyond a period of 3 years from the date of declaration of the loan account of the Corporate Debtor as NPA, even though the Corporate Debtor might subsequently have acknowledged its liability to the Appellant Bank, within a period of three years prior to the date of filing of the Petition under Section 7 of the IBC, by making a proposal for a One Time Settlement, or by acknowledging the debt in its statutory Balance Sheets and Books of Accounts. 25. Another question which arises ....
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....DRT, or any other Tribunal or Court, or the issuance of a Certificate of Recovery in favour of the Financial Creditor, would give rise to a fresh cause of action for the Financial Creditor, to initiate proceedings under Section 7 of the IBC for initiation of the Corporate Insolvency Resolution Process, within three years from the date of the judgment and/or decree or within three years from the date of issuance of the Certificate of Recovery, if the dues of the Corporate Debtor to the Financial Debtor, under the judgment and/or decree and/or in terms of the Certificate of Recovery, or any part thereof remained unpaid. 144. There is no bar in law to the amendment of pleadings in an application under Section 7 of the IBC, or to the filing of additional documents, apart from those initially filed along with application under Section 7 of the IBC in Form-1. In the absence of any express provision which either prohibits or sets a time limit for filing of additional documents, it cannot be said that the Adjudicating Authority committed any illegality or error in permitting the Appellant Bank to file additional documents. Needless however, to mention that depending on the facts and circ....