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TaxTMI 
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2022 (9) TMI 1068
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....ed admission order dated 13.03.2020 (communicated on 01.07.2020) passed by the Hon'ble AA, Ahmedabad (Indore Bench) in the case of TP No. 152 of 2019 [CP (IB) No. 99 of 2019)], and be pleased to pass order releasing the Corporate Debtor from the rigor of 'Corporate Insolvency Resolution Process'. etc". 3. It is the case of the Appellant that the IDBI has provided financial assistance to the Corporate Debtor (Hotline Glass Ltd.)/R-2 in the form of restructuring and private placement of Non-Convertible Debentures (NCD) amounting to Rs. 31.71 Crore allotted on 24.03.1999 pursuant to sanction letter dated 18.02.1999 (appeal paper book page 56). 4. R-1/(SASF) has got the assignment in its favor from IDBI. Total amount of debt as per Form no. I- application made by financial creditor to initiate CIRP appearing at pg- 54 filed under Section 7 of the Code reflects total amount of debt disbursed Rs. 31.71 Crore on 24.03.1999. The corresponding Sanction Letter is dated 18.02.1999, letter no. is CFD-III/HGL/4082 issued by IDBI. The amount claimed to be in default as reflected in part (IV) of the form-I is Rs. 600,10,01,165/- (over....
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....r Aluminium Industries Pvt. Ltd. & Anr." (2020) 15 SCC 1. (f) It was also stated by the Ld. Counsel for the Appellant that the period during which the proceedings were pending before the BIFR cannot extend/ be excluded for computing limitation period. He went on to further clarify even if the said period is excluded i.e. the period from 20.01.2007 till 14.05.2012, no recovery action was taken by the R-1 for 616 days prior to filing of second reference before BIFR. However, the second reference was registered by BIFR on 21.01.2014. (g) The Ld. Counsel for the Appellant stressed that even if we exclude the period before second reference to BIFR from 21.01.2014 till 01.12.2016 no recovery action was taken by Respondent no.1 for 778 days. From the date of abatement of BIFR proceeding as the petition under the Code has been filed only on 19.01.2019. No action was taken by R-1 for 1394 days, this clearly reflects that the application is hopelessly time barred. (h) The Respondent no.1 /Financial Creditor cannot seek any benefit under Section 18 of the Limitation Act as there is no acknowledgment of debt in the present case. OTS proposal was also withdrawn on 17.08.2006. The Balance ....
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....under as per OTS Sanction Letter dated 20.04.2005, since Corporate Debtor failed to comply with the terms and conditions thereof. (Annexure- R/6 @ Pg. No. 162; Vol I of Reply) 26.02.2007 Corporate Debtor filed Reference under Section 15 of the SICA, 1985, bearing Ref. Case No. 20/2007 ("First Reference"), before the Board for Industrial and Financial Reconstruction ("BIFR"). In Form-A, as required for filing Section 15 Reference under SICA, filed by the Corporate Debtor before BIFR, Corporate Debtor records and acknowledges-in-writing its dues/outstanding against the Respondent No.1 (Annexure-R/12 @ Pg. No. 187; Vol I of Reply) N.B. Prior to the expiry of limitation (on 20.04.2008), Corporate Debtor accepts and acknowledged-in-writing its obligations under the Form-A dated 26.02.2007. Thus, period of limitation further extends to a period of 03 years from 26.02.2007 till 26.02.2010. 17.06.2008 Respondent No. 1 issued statutory notice under Section 13(2) of SARFAESI Act, 2002 ("Section 13(2) Notice"), to enforce security interest provided by the Corporate Debtor. (Annexure -R/7 @ Pg. No. 163; Vol I of Reply) 26.08.2008 Appellant (Mr. Anuj Gupta) responds to Section 13(2) Notic....
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....12 First Reference Case was again dismissed by BIFR. N.B. During pendency of First Reference Case before BIFR (both round of litigation) and Appeal before AAIFR (from 26.02.2007 till 14.05.2012), in view of Section 22 of SICA, Respondent No. 1 was prevented from taking any recovery measures in respect of the Corporate Debtor. 16.06.2012 Corporate Debtor filed before the BIFR which was registered as Case No. 06/2014 ("Second Reference Case"). In Form-A dated 16.06.2012, as required for filing Section 15 Reference under SICA, filed by the Corporate Debtor before BIFR, Corporate Debtor records and acknowledges-in-writing its dues/outstanding against the Respondent No.1. (Annexure-R/13 @Pg. No. 198; Vol I of Reply) 30.08.2013 In view of ABS dated 30.08.2013 for FY 2012-13 (as on 31.03.2013), Corporate Debtor has acknowledged its debt owed and payable to Respondent No. 1 (Annexure-R/14 @ Pg. No. 282; Vol II of Reply) N.B. Prior to the expiry of limitation (on12.08.2014), Corporate Debtor accepts and acknowledges-in-writing its obligations in ABS dated 30.08.2013 for FY 2012-13 (as on 31.03.2013). Thus, period of limitation further extends to a period of 03 years from 30.08.2013 til....
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....hed to the NCLAT vide diary no. 49730 dated 06.12.2021. 11. The Adjudicating Authority has admitted the present petition under Section 7 of the Code after making following observations which is quite elaborate and illustrative as follows: "22. The crucial point of limitation involved in this present I.B. Petition needs consideration and to be dealt with by this Court in the light of the Law settled by the Hon'ble Supreme Court and judicial precedents applicable. 23. It is now undisputed legal position that, while, filing the present Petition under Section 7 of the I.B. Code, only article 137 of the Limitation Act would attract which provides that the application can be filed within three years from the right to sue accrue i.e. the date of default from the date of non-performing asset declared by the lender bank. 24. Undisputedly, in the present matter, the date of default is 01.01.2008, while the present I.B. petition came to be filed before this Bench on 19.01.2019. However, by a careful examination of such issue of limitation, it is evident and the matter of record as being admitted position that the Corporate Debtor itself had wrote a letter offering one time settlement (....
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.... the Corporate Debtor. Further, the period spent in during the pendency of SICA proceedings is required to be excluded. It is further found that the present petition is field within the remaining period of three years from 01.12.2016. Admittedly, the Petitioner/ Financial Creditor has filed the present petition on 10.01.2019, which is found to be filed within three years after exclusion of such period consumed in the SICA proceedings. Hence, the present petition is maintainable before this Adjudicating Authority. 27. Further, the Learned Counsel appearing for the Petitioner Bank drew our attention to the decision of co-ordinating Bench of NCLT, New Delhi having similar circumstances wherein, the NCLT, New Delhi took a view that such period needs to be excluded for the purpose of counting limitation and thus it pleased to admit the petition so as to trigger the CIRP against another Corporate Debtor Company namely M/s. Hotline Glass Limited vide IB-33/(ND)/2019 dated 27.08.2019. The relevant paragraphs 3 and 4 of the NCLT, New Delhi judgment is reproduced herein below: "3. The Petitioner has also filed a detailed rejoinder to the observations of the respondent, vide diary no. 071....
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....r as on 31.12.2006 filed an application under Section 15(1) of Sick Industrial Companies Act, 1985 before BIFR in January 2007 which was admitted as case no. 09/2007 and was pending before BIFR till the SICA Act, 1985, was repealed and in view of the applicant could not take any steps against the corporate debtor for recovery. Further, SICA has been repealed by way of a notification dated 25.11.2016 published by the Government of India with effect from 01.12.2016 and thus the BIFR established under the provision of SICA was also abolished. As per Section 22(5) of SICA (since repealed), period from 15.01.2007 to 30.11.2016 is to be excluded for the purpose of limitation. Between 2004 to 2007 it is also seen that dispute settlement was arrived, however the same stood withdrawn subsequently. Thus "Right to Sue Survives" and the present petition being filed in December 2018 is within limitation, being within three years from the date, the cause of action for recovery proceedings arose. Further even though a feeble attempt was made on the part of the Corporate debtor to project certain inconsistences in relation to claim amounts, however it is seen that the amount in default excess of R....
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....) which itself has extended the period of limitation till 26.08.2011 and concurrently further extended by the acknowledgment by Corporate Debtor in its Balance Sheet till 31st March 2018 duly signed by Appellant as Director and Chartered Accountant on Sept. 4, 2018 (Page No. 349- Affidavit in Reply of R-1). (vii) The Hon'ble Apex Court in its Judgment in Civil Appeal Nos. 84-85 of 2020 in "Asset Reconstruction Company (India) Ltd. vs. Tulip Star Hotels Ltd. & Ors." 2022 SCC Online SC 944 decided on 01.08.2022 has settled the issue in paragraph 85 and 97 of the Judgment as depicted below: "85. It is well settled that entries in books of accounts and/or balance sheets of a Corporate Debtor would amount to an acknowledgment under Section 18 of the Limitation Act. In Bishal Jaiswal (supra) authored by Nariman, J. this Court quoted with approval the judgments, inter alia, of Calcutta High Court in Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff , and Pandem Tea Co. Ltd., the judgment of the Delhi High Court in South Asia Industries (P) Ltd. v. General Krishna Shamsher Jung Bahadur Rana and the judgment of Karnataka High Court in Hegde Golay Ltd. v. State Bank of India and held tha....