TaxTMI 
TaxTMI 
2022 (8) TMI 324
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.... the impugned order are depicted below: 4. Hon'ble Supreme Court, firstly, in the case of "B.K. Education Services Private Limited Vs. Parag Gupta and Associates - MANU/SC/1160/2018" has held that: "42. It is thus clear that since the Limitation act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. "The right to sue", therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation act, save and except in those cases where, in the facts of the case, section 5 of the Limitation Act may be applied to condone the delay in filing such application." This view has been reiterated by the Hon'ble Supreme Court in all subsequent Rulings so as, in case of Jignesh Shah, in case of Gaurav Hargovindbhai Dave, in case of Sagar Sharma and in case of Vashdeo R. Bhojwani etc. 5. So, in view of facts on record and considering the principles of Law of Limitations as stated above, we are of the view that the instant application is barred by Law of Limitation....
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....y 23, 2009 revoked the said OTS. 01.12.2016 The Corporate Debtor continued to be under purview of BIFR and same was pending until/BIFR dissolved on 01/12/2016 and the SICA Repeal act came into force and on and from which any reference or inquiry pending shall stood abated. 11.08.2017 The Corporate debtor offers a onetime settlement to the financial creditor. 07.10.2017 The Financial Creditor initiates insolvency proceedings under section 7 of the Insolvency & Bankruptcy Code, 2016 against the Corporate debtor before the NCLT, Ahmadabad Bench. 20.01.2022 The NCLT, Ahmadabad Bench dismisses the Section 7 Petition of the Appellant stating that the application is after a period of fifteen years from the period of when the right to sue accrue to the Financial Creditor and the provisions of Article 137 of the Law of Limitation applies to the proceedings. 5. It has been submitted by Ld. Counsel of the Appellant that it had availed a foreign currency loan of USD 1.25 from IDBI Bank million vide sanction letter dated 05.12.1997 and Foreign Currency Loan Agreement dated 31.12.1997. However, the Respondent failed to pay the principal outstanding aggregating to Rs 5 Crores 20 Lacs hen....
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....on was within limitation as prescribed under Article 137, yet the Ld. Adjudicating Authority dismissed the Section 7 Petition filed by the Appellant on the grounds that the application was filed after a period of fifteen years from the date on which the right to sue accrued to the financial creditor. The date of default as recorded by the Adjudicating Authority was 19.04.2004 i.e. the Recall Letter. The Adjudicating Authority erroneously interpreted/relied upon B.K. Education Services Limited v Parag Gupta & Associates ("BK Educational Services Limited"). 12. It was brought to our notice that the Adjudicating Authority relying on BK Educational Services Limited dismissed the section 7 Petition of the Appellant without appreciating the fact that the Corporate Debtor on 23.11.2005 ("BIFR Reference Date") was referred to BIFR under Section 15(1) of the Sick Industrial companies (Special Provisions) Act, 1985 ("SICA"), to the Board of Industrial & Financial Reconstruction ("BIFR") being case No. 160/2005 and same was pending adjudication. The Corporate Debtor was declared to be a sick industrial company and IDBI was appointed as an operating agency under section 17(3) of the Sick Indu....
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....ant, had shown the amount as deposits from friends. A copy of the balance sheet as on 31st March 1997 is also produced before us. If the amount borrowed by the respondent is shown in the balance sheet, it may amount to acknowledgement and the creditor might have a fresh period of limitation from the date on which the acknowledgement was made. However, we do not express any final opinion on all these aspects, as these are matters to be agitated before the Magistrate by way of defence of the respondent." (emphasis supplied). It is pertinent to note that the acknowledgment made in the balance sheet is prior to the expiry of the limitation period that is 19.04.2007(even assuming for the sake of argument that the limitation period expired on 19.04.2007 if one does not consider the Excluded Limitation Period under BIFR reference) and hence this constitutes an acknowledgment under Section 18 of the Limitation Act, 1963. Copies of the Balance Sheet of the Corporate Debtor from the year ending 2004-05 till 2016-17 is annexed with this Appeal and marked as Annexure A/7(Colly). 15. The Ld. Adjudicating Authority also failed to consider that Respondent is in continuous default of its paymen....
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....1.12.2016. (iii) It is also not in dispute that the Financial Creditor initiated CIRP under Section 7 of the Code against the Corporate Debtor on 07.01.2019. (iv) It is also not in dispute that the Balance Sheet from the year 2004-2005 till 2016-2017 has disclosed and acknowledged the outstanding liability owed by the Respondent to the Appellant/Financial Creditor. (v) Even a look at form1 filed by the Financial Creditor reveals that the Financial Creditor is a Special Purpose Vehicle in the form of a trust recognised as Financial Institution under Section 2 (h) (ii) of the RDDBFI Act, 1993 by way of Gazette Notification, for acquiring by transfer, the stressed assets of IDBI Bank with a view to recovering the amounts due thereunder. In the application itself the amount claimed to be in default is Rs. 90,60,22,736/- and NPA date is 19.01.2004. However, in Part V particulars of financial debt. Financial Creditors disclosed all the security created for this loan/ charge including the action taken under the SARFAESI and invocation of guarantee dated 20.02.2017 claims under Bankers Book Evidence Act dated 04.10.2018, copy of audited balance sheet of the CD for the year ended 31.0....