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2022 (10) TMI 887
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....rate "sufficient cause" for condoning the delay in filing the petition IB No. 332/ND/2021 before the Adjudicating Authority. 3. In brief, the case of the Appellant is that he was authorized by the principal Orbest Airlines through an authorization letter dated 29.10.2012 to 'submit, represent and act on behalf of Orbest Airlines in connection with charter agreement dated 3.11.2012' entered into by Orbest Airlines with Air India for carrying pilgrims between Jeddah and Medina to Gaya as per directions of Air India and Air India promised to make payments in accordance with the terms and conditions of the charter agreement to Orbest Airlines. The appellant's contention is that he was dealing with Air India on behalf of Orbest Airlines and an amount of US $ 275,000 was due to Orbest Airlines from Air India and the Appellant was duly authorized by Orbest Airlines vide letter dated 11.3.2013 sent by the Commercial Director to receive payment amounting to US $ 275,000 from Air India on account of last payment in connection with air transportation of Haj pilgrims in the year 2012. 4. The Appellant has stated that despite repeated requests made by the Appellant to Air India, they did ....
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....as finally disposed of vide order dated 28.11.2018, whereby it was dismissed. The Learned Counsel for Appellant has claimed that the operational creditor was sincerely pursuing legal remedy for recovery of the overdue amount and after the writ petition was dismissed by the Hon'ble High Court of Delhi that the Appellant issued a demand notice dated 29.4.2021 to the corporate debtor for payment of overdue amount under section 8 of the IBC. He has also claimed that the Respondent never disputed payment of the requisite amount in multiple communications which are on record, but the payment was kept pending by the Respondent as it kept on raising various requirements, including furnishing a bank guarantee and later an indemnity bond. He has claimed that the operational creditor sent a duly executed indemnity bond to Air India, whereafter Air India put forward a new requirement of authentication of a letter dated 11.3.2013 issued by the Commercial Director of Orbest Airlines. 8. The Learned Counsel for appellant has thus vehemently argued that the debt was at various occasions acknowledged by the corporate debtor through e-mail communication which is, inter alia, acknowledgement of th....
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.... dated 11.3.2013 which was sent before Orbest airlines went into liquidation, as per advice of its legal counsel, but the same was not submitted and hence the delay of non-submission of requisite documentations has kept the payment pending. Finally, he has argued that since sufficient cause was not shown for condonation of delay that was requested in IA. No. 3425/2021, it was correctly dismissed by the Adjudicating Authority. 11. The issue that falls for consideration in the present appeal is whether the section 9 petition was filed within limitation and therefore it concerns IA No. 3425/2021, which is an application for condonation of delay under section 5 of the Limitation Act. 12. A perusal of pleadings made in section 5 application under Limitation Act shows that the operational creditor has admitted that the last acknowledgment by the corporate debtor was on 21.11.2017 through an e-mail from corporate debtor to Mr. Bruno Claeys, former Commercial Director of the ex Orbest Airlines which was actually to check the authenticity of letter dated 11.3.2013 and also enquiring whether the said letter was signed by him in his capacity as Commercial Director of Orbit Airlines. Cle....
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....mail dated 28.11.2017 (attached at pg. 206 of appeal paperbook, Vol.II) has been sent at a time when Mr. Bruno Claeys was no longer working with the successor body of Orbest Airlines which had been liquidated. 14. Thus we find that in the light of ASG's opinion seeking to establish authenticity of the letter issued by the ex-Commercial Director Mr. Bruno Claeys' letter dated 11.3.2013, there is a clear doubt about the authenticity of the letter, which the Appellant has not clarified though he was asked to do so. We also note that after liquidation of Orbest Airlines, a certification issued on 11.11.2016 (attached at pg.178, Appeal Paperbook, Vol.II) by Mr. Macros Andreu Bleckmann, a Spanish Lawyer registered in the Bar Association of Madrid to say that the company Iverworld Airlines SA (DBA Orbest Airlines)/official liquidator has no claim against the company Air India Ltd. 15. Thus it is clear that Orbest Airlines went into liquidation on 21.1.2014, and that in the event of Mr. Bruno Claeys refusing to accept that the signature on the letter dated 11.3.2013 was not in his hand-writing, it is not established that so-called operational debt is due and payable to the Appellant.....
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.... liquidation certified that no payment was due to be received from Air India. 19. We peruse the judgment of the Hon'ble Supreme Court in the matter of Assets Reconstruction Company (India) Limited vs. Bishal Jaiswal ( 2021 SCC OnLine SC 321) wherein Hon'ble Supreme Court has observed as follows:- "........ The statement on which a plea of acknowledgement is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words. Words used in the acknowledgement must, however, indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission, and need not be expressed in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it. The admission in question need not be expressed but must be made in circumstances and in words from which the court can reasonably infer that the person making the admission intended to refer to a subsis....