TaxTMI 
TaxTMI 
2021 (11) TMI 731
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....n 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred as the 'Code'), on the ground that the Application was barred by Limitation. 2. Submissions of Learned Counsel appearing on behalf of the Appellant Learned Counsel vehemently contended that the Corporate Debtor had failed to repay the amount of the Financial Facility granted to it, on account of which the Corporate Debtor was classified as NPA by State Bank of India (SBI) on 28.02.2002. On 21.05.2005, the Account of the Corporate Debtor was restructured under Corporate Debt Restructuring (CDR) Scheme by the Corporate Debt Restructuring Cell with an approval dated 25.05.2005. Various credit facilities were sanctioned by the SBI under CDR Mechanism till 30.06.2005. It is submitted that the first reference before BIFR was made on 24.11.2003 and the second reference was made on 01.11.2004. The BIFR 107/2004 and 338/2004 respectively were dismissed on 04.05.2016 as not maintainable. Therefore, the period between 27.11.2003 uptill 04.05.2016 has to be excluded for the purpose of calculating limitation. The Application under Section 7 was filed before the Adjudicating Authority on 01.10.201....
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....rospective effect, on 31.03.2010. The earlier Deed of Assignment was reported to have been lost as mentioned in the latter deed. It is contended that there has been legally untenable proposition of two deeds of Assignment in favour of the Appellant, effective from 31.03.2010 to 21.09.2011. The name of the Appellant does not reflect in the list of charge holders on the MCA websites. The Learned Counsel strenuously argued that no additional documents can be allowed to be placed by the Appellant which were not part of the record before the Adjudicating Authority. The Adjudicating Authority had given an opportunity to the Appellant to rectify the defect in the certificate under the Banker's Book of Evidence Act, subsequent to which, the Appellant filed a compliance affidavit vide diary No. 7268 dated 18.12.2019 which was later withdrawn with the liberty to file a fresh compliance affidavit. Subsequently a fresh compliance affidavit vide diary No. 1246 dated 14.02.2020 was filed attaching another certificate under the Banker's Book of Evidence Act. Hence sufficient opportunity was given to the Appellant and further ought to be permitted to be filed at this stage. As....
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....2.2002 and as discussed above, can be taken to be extended and fresh period of limitation computed from the claimed payment on 23.06.2008. The present claim based on the annual reports for 2015-16 and 2016-17 are beyond the expiration of the prescribed period and therefore, Section 18 of the Limitation Act, 1963 does not have Application. Moreover, the acknowledgment of liability is to be made in writing signed by the party against whom the property or right is claimed. No such signatures at pages 922 and 923 of the petition are brought to our notice. Moreover, pages 922 and 923 are only "Classification of Borrowings (Table)" and the complete Balance Sheet is not filed. The plea under Section 18 of the Limitation Act is therefore, rejected. 30. The learned counsel for Invent Assets has relied on M/s R. Sureshchandra & Co. vs. M/s Vadnere Chemical Works AIR 1991 Bom 44 and to para 10 thereof which reads as follows:- "10. There is another reason why the claim is good in law even if we assume that Ex. D was not executed before the expiry of period of limitation. Section 25(3) Contract Act validates a promise to pay a debt barred by limitation. This, it was argued, is....
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....ourt in M/s R. Sureshchandra & Co. vs. M/s Vadnore Chomicaf Works AIR 1991 Bom 44 supra has similarity held that the balance sheet is signed by defendant 3 who is partner of the firm, her competence to bind the firm is not disputed, and being thus clear, it amounts to a promise within the meaning of Section 25(3) of the Contract Act. In the discussion with reference to Section 18 of the Limitation Act, we have found that the complete balance sheet for 2015-16 and 2018-17 is not filed and that even the extract given at pages 922 and 923 of the petition are not signed. Therefore, the judgement of the Hon'ble Bombay High Court in M/s R. Sureshchandra & Co. vs. M/s Vadnero Chemical Works AIR 1991 Bom 44 supra and Section 25(3) of the Indian Contract Act are not applicable to the facts of the present case. 33. In result thereof, the plea raised by Girnar that the Application in CP (1B) No.347/Chd/Pb/2018 is not filed within the period of limitation is accepted. 34. CA No.882/2019 is allowed and CP 1B No.347/Chd/Pb/2018 is dismissed. Pronounced in open court" 5. The main point for consideration in this Appeal is whether the Application preferred by the A....
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....ick company in its pending reference, then BIFR would consider the same and continue with it. However if the respondent sick company fails to do so within the stipulated time, then its pending reference will be deemed to have been dismissed as non-maintainable." (Emphasis Supplied) 8. This issue is to be decided on the touchstone of the ratio of the Hon'ble Supreme Court in 'Dena Bank (now Bank of Baroda)' Vs. 'C. Shivakumar Reddy & Anr.' 2021 SCC OnLine SC 543, in which Judgement, the Hon'ble Apex Court in paras 142 & 143 has concluded as follows:- 142. To sum up, in our considered opinion an application under Section 7 of the IBC would not be barred by limitation, on the ground that it had been filed beyond a period of three years from the date of declaration of the loan account of the Corporate Debtor as NPA, if there were an acknowledgement of the debt by the Corporate Debtor before expiry of the period of limitation of three years, in which case the period of limitation would get extended by a further period of three years. 143. Moreover, a judgment and/or decree for money in favour of the Financial Creditor, passed by the DRT, or any other Tribun....
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....e Corporate Debtor was declared sick by BIFR on 25.04.2006 itself. The argument of the Learned Counsel that 05.05.2016 should be taken as the first accrual of the cause of action is unsustainable, as the period of limitation i.e. 3 years had already expired before the BIFR reference was made by the Corporate Debtor. The documentary evidence on record does not establish any acknowledgment of liability made in writing, signed by the party against whom the property or right is claimed and hence Section 18 of the Limitation Act, 1963 cannot be made applicable to the facts of the instant case. 11. In Jignesh Shah and Anr. Vs. Union of India 2019 (10) SCC 750, the Hon'ble Apex Court observed that "the acknowledgment of liability under Section 18 of the Limitation Act, 1963 would certainly extend the limitation period but a suit for recovery which is a separate and independent proceeding distinct from the remedy for winding up would in no manner impact the limitation within which the winding up proceeding is to be filed, by somehow keeping the date alive for the purpose of winding up proceeding". In 'Basudev R. Bhujwani' Vs. 'Abhyudaya Co-operative Bank Ltd.' (2019) 9 SCC 158, it is fu....