TaxTMI 
TaxTMI 
2021 (10) TMI 1313
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....reinafter called "Code") read with Rule 4 of the Insolvency and Bankruptcy (AAA) Rules, 2016. Contentions of Petitioner: 2. The Petitioner submits that the Unit Trust of India (UTI) (Assignor) advanced a financial assistance to the Corporate Debtor in the form of a subscription of 5,00,000 Secured Redeemable Non-Convertible Debentures of face value of Rs. 100 (Rupees One Hundred Only) along with all interest and charges payable under the financial facility. The terms and conditions of the Financial Facility were set out in the Sanction letter dated 16th February, 1998 and Letter of Modification dated 4th May, 1998 issued by UTI to Corporate Debtor and Subscription Agreement dated 15th June, 1998 executed between the Corporate Debtor and UTI. Subsequently, the terms and conditions of the sanction were modified on May, 1998, inter alia, reducing the rate of interest from 19% to 17.5%. 3. The Petitioner further submits that Bank of Maharashtra was appointed as the Debenture Trustee vide a Debenture Trust cum Mortgage Deed dated 14th October, 1998 in respect of the Debentures subscribed by the UTI. In the same deed, the Corporate Debtor, inter alia, mortgaged its properties si....
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....8 of the Limitation Act a fresh period of limitation shall be computed only before the expiration of the period of limitation, a party in writing acknowledges the debt. But in this Petition, the Petitioner has failed to prove or produce any document to show that Corporate Debtor had acknowledged the alleged debt in writing. 10. In the present case, the right to sue accrued in 2004 when UTI issued Recall Notice but the Petition was filed only on 6th November, 2018. Thus, the Corporate Debtor states that the present petition is based on a time barred debt. 11. The Corporate Debtor has relied upon the judgment of Supreme Court in the case of B. K. Educational Services (P) Limited Vs. Parag Gupta and Associates (2019) 11 SCC 633. 12. In view of the above, the Corporate Debtor prays that the Present petition to be dismissed with cost. Findings: 13. This Petition has been filed by Phoenic ARC Private Limited (hereinafter referred as "Applicant/Financial Creditor") against the Ajanta Paper and General Products Limited and Ors. (hereinafter referred as "Respondent/Corporate Debtor") for 5,00,000 (five Lakhs) 19% Secured Redeemable Non-Convertible Debentures of face value of ....
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....ts liability towards the financial facility in its various financial documents filed with the Statutory authorities. 19. It is on record that the Corporate Debtor was referred to BIFR under Sick Industrial Companies (Special Provisions) Act, 1986 (SICA). The reference of the Corporate Debtor to BIFR was pending until 19th June, 2008. When, as mentioned by the Petitioner, the reference to BIFR in SICA was abated and accordingly ordered by BIFR. Therefore, the Bench is of the view that as per Section 22 of the SICA, 2003, the Petitioner could not have instituted or prosecuted any proceedings against Corporate Debtor from 2003, when the company was referred to BIFR and till June, 2008 when the said reference was abated by BIFR. Thus, the time period between 2003 to 19th June, 2008 as per law would stand excluded while computing the period of limitation for filing the petition. 20. The Petitioner has produced before the Bench the annual returns and the balance sheet filed by the Corporate Debtor before RoC for the financial year ending 31st March, 2009 where it has been clearly shown the Corporate Debtor who has 5 lakh debentures of the face value of Rs. 100 each of Unit Trust of....
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....ion by three years, apart from the fact that a Certificate of Recovery was issued in favour of the Appellant Bank in May 2017. The NCLT rightly admitted the application by its order dated 21st March, 2019." 26. This Bench would also like to refer to recent judgement of Hon'ble Supreme Court in the Asset Reconstruction Company vs Bishal Jaiswal on 15 April, 2021 wherein the Hon'ble Supreme Court has mentioned the following: "14. Several judgments of this Court have indicated that an entry made in the books of accounts, including the balance sheet, can amount to an acknowledgement of liability within the meaning of Section 18 of the Limitation Act.." 27. In view of the above facts and the judgements of Hon'ble Supreme Court, it is clear that there has been acknowledgement of debt as per the financial filings of the Corporate Debtor with RoC regularly and year after year and thus it would fairly constitute as the acknowledgement under Section 18 of the Limitation Act, 1963. 28. Under these circumstances, this tribunal is of the considered opinion that the above company petition is liable to be admitted and accordingly the same is admitted by passing the following: ....
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.... h. That the public announcement of the corporate insolvency resolution process shall be made immediately as specified under section 13 of the Code. i. During the CIRP period, the management of the corporate debtor will vest in the IRP/RP. The suspended directors and employees of the corporate debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRP/RP. j. Registry shall send a copy of this order to the Registrar of Companies, Mumbai, for updating the Master Data of the Corporate Debtor. 29. Accordingly, CP 4277 of 2018 is admitted. 30. The Registry is hereby directed to communicate this order to both the parties and the Interim Resolution Professional immediately. ============= Document 1 170 Ledger Folio of Shares/Debenture Holder: 001 Share/Debenture Holder's Name Father's Husband's Name : UNIT TRUST OF INDIA Town/City State Pin Code Address 13-Sir Vithldas : Thakersy Marg : Mumbal : MAHARASHTRA : 400 020 Type of Share/debenture : 3 Number of Shares/Debentures held : 500000 Amt. Per Debenture: Rs.100/- For Direcital 12 Direc....