TaxTMI 
TaxTMI 
2023 (10) TMI 893
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....er Section 7 of the I & B Code, 2016, r/w Rule 4 of the I & B (AAA) Rules, 2016, passed by the 'Adjudicating Authority' ('National Company Law Tribunal', Bench - I, Hyderabad). 2. Earlier, while passing the 'impugned order', dated 05.06.2023 in CP (IB) No. 645 / 7 / HDB / 2018, Filed by the '1st Respondent / Financial Creditor / Bank / Petitioner', under Section 7 of the I & B Code, 2016, r/w Rule 4 of the I & B (AAA) Rules, 2016), the 'Adjudicating Authority' / 'National Company Law Tribunal', Bench - I, Hyderabad), among other things, at Paragraphs 20 to 28, had observed the following: 20. "Having anxiously considered the submissions of the Ld. Counsel for both the parties and on careful perusal of the relevant provisions of the IB Code, besides by taking into consideration the well settled legal position in this regard, the submission of the Ld. Counsel for the Corporate Debtor that, the 'default' which is the sine qua non, for setting in motion the application under section 7 of IB Code, the Legislature in its wisdom meant only the "default" that occurred at the first instance and not the extended default, by virtue of acknowledgement of debt or on the basis of entr....
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....der sub-section (1) of Section 7 as contended by Learned Counsel for the Applicant. 22. In fact, a similar argument put forth has been out-rightly rejected by the Hon'ble NCLAT in the matter between Koncentric Investments Ltd. Vs. Standard Chartered Bank, London, CA (AT) Insolvency No. 911/2021 dated 27.01.2022, and it was held as under: - "8. .. .. Sr. Advocate appearing for the Respondent No.1 refuting the submissions of Learned Sr. Counsel for the Appellant submits that Facility Agreement dated 22nd May, 2013 was amended by Supplemental Agreement dated 19th August, 2013 and first disbursal of amount was made on 30th August, 2013 hence 27 months period was to expire on 30th November, 2015 and first instalment thus became due only on 30th November, 2015. It is true that interest due on 30th June, 2015 was not paid but not filing Section 7 Application on the ground of default in payment of interest amount shall not take away the right of bank to sue when first instalment became due or when entire loan became due in view of the Acceleration Notice dated 05.01.2017. Section 7 (1) of the Code speaks of Company Appeal (AT) (Insolvency) No. 911 of 2021 default it does ....
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....n-payment of part of debt since interest was also part of debt. We thus agree with the submissions of Learned Sr. Counsel for the Appellant that there was default when interest was not paid on 30th June, 2015. Now question is as to when a Financial Creditor has not filed the Application on first default i.e. payment of interest whether he is precluded to file Application for subsequent defaults i.e. when default is committed for an instalment or for whole debt when it becomes due." (Emphasis supplied) "21. The Insolvency and Bankruptcy Code including rules and regulations, does not indicate that it is mandatory for the Financial Creditor to rush to file Section 7 Application whenever first default is committed in payment of interest. Although it had liberty to file an application even if there is default in payment of interest. Section 7 (1) of the Code uses the expression when a default has occurred there is no indication under Section 7 of the Code that unless an Application is filed on first default committed, no application can be filed when subsequent defaults are committed. The Financial Creditor is at liberty to file Section 7 Application but is neither mandatory no....
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....t 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." "Thus, for applying the law of limitation on Section 7 Application it is to be seen as to whether the date of default as claimed in the application and payment of debt and debt due is not beyond three years and if the date of default as claimed in the Application is within three years the Application cannot be thrown out as barred by limitation. The mere fact that the Financial Creditor has ignored or not claimed any due which was due three years prior to the date of default as claimed in the Application shall not disentitle the Financial Creditor to claim the debt which was payable within three years from the date of filing. We are conscious of the law as declared by Hon'ble Supreme Court that normally date of default is a date when account of borrower has been declared NPA. When account is declared NPA it is open for the lender to claim....
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....he proceedings under Section 7 of the Code. Further, the acknowledgment must be of a liability in respect of which the financial creditor can initiate action under Section 7 of the Code." 25. To accept the submissions made by Learned Counsel for the applicant, we have to read one additional word under Section 7 before the word 'Default' under Sub-Section 1 of Section 7 of the Code i.e. the word 'First'. The submission of the Appellants is that when first default is committed by a Debtor, the Creditor has necessarily and mandatorily to Company Appeal (AT) (Insolvency) No. 911 of 2021 initiate Application under Section 7 failing which the right of creditor to file an Application under Section 7 of the Code shall be defeated by law of limitation. 26. Hon'ble Supreme Court of India in re Dena Bank v. C. Shivakumar Reddy, at page 144 & 145 held 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 acknow....
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....esting upon a 'Time Barred Debt', because of the fact that the 'Amendment Application', was preferred, beyond the 'Statutory Period' of 'three years', from the 'date of Last Cause of Action'. 4. According to the Appellant, the 'Adjudicating Authority' / 'Tribunal', at the time of passing the 'impugned order', dated 05.06.2023, in CP (IB) No. 645 / 7 / HDB / 2018, had failed to appreciate that the 'Debt', sought to be enforced even by incorporating alleged acknowledgements in the 'Balance Sheets' of the 'Corporate Debtor', was 'Time Barred', in as much as the last acknowledgement, as per the 'Amended Application', under Section 7 was 27.08.2016 and the 'Amended Application', was filed on 17.11.2021 Viz. beyond the statutory period of 3 years. 5. The Learned Counsel for the Appellant, advances a plea that it is a 'trite Law', that the 'amendment', although, properly made cannot 'relate back', to the 'date of filing' of the 'Original Petition', but to the 'date of filing' of the 'amended Application'. 6. The Learned Counsel for the Appellant, takes a stand that the 'cardinal principle of Law', that if an 'amendment made, introduces a different 'new cause of action', based on ....
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....l', in Comp. App (AT) (INS.) No. 636 of 2020, between State Bank of India v. Vibha Agro Tech Limited, wherein, at Paragraphs 8 & 9, it is observed as under: 8. "The issue regarding the appreciation of the balance sheets which has now become part of record is to be looked into by the Adjudicating Authority to hold as to whether the application filed under Section 7 of the Code is within limitation or not. Therefore, we are of the considered opinion that this matter requires a relook by the Adjudicating Authority especially after the amendment has been made in the application filed under Section 7 of the Code to find out as to whether the application filed under Section 7 is within limitation in terms of the alleged acknowledgment of the part of the Respondent by way of the entries made in the balance sheets. 9. In the view of the aforesaid discussion, the appeal is allowed and the order of the Adjudicating Authority is set aside. The matter is remanded back to the Adjudicating Authority to reconsider the amended application, filed under Section 7 of the Code, at the instance of the Appellant. It is needless to mention that the Hon'ble Supreme Court has also given l....
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....f Liability', by the 'Corporate Debtor'. 13. The Learned Counsel for the Appellant, refers to the Judgment of the Hon'ble Supreme Court of India dated 15.04.2021, in the matter of Asset Reconstruction Company (India) Limited v. Bishal Jaiswal & Anr. (vide Civil Appeal No. 323 of 2021), reported in India Kanoon, wherein, at Paragraph 22, it is observed as under: 22. "A perusal of the aforesaid Sections would show that there is no doubt that the filing of a balance sheet in accordance with the provisions of the Companies Act is mandatory, any transgression of the same being punishable by law. However, what is of importance is that notes that are annexed to or forming part of such financial statements are expressly recognised by Section 134(7). Equally, the auditor's report may also enter caveats with regard to acknowledgements made in the books of accounts including the balance sheet. A perusal of the aforesaid would show that the statement of law contained in Bengal Silk Mills (supra), that there is a compulsion in law to prepare a balance sheet but no compulsion to make any particular admission, is correct in law as it would depend on the facts of each case as to whethe....
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.... seeks in aid of the decision of the Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kaur & Ors. (vide Civil Appeal No. 4544 of 1984 dated 23.02.1999), (1999) 2 SCC 679, wherein, at Spl Pg: 684, at Paragraph 9, it is observed as under: 9. "...... Thus, the acknowledgement, if any, has to be prior to the expiration of the prescribed period for filing the suit, in other words, if the limitation has already expired, it would not revive under this Section. It is only during subsistence of a period of limitation, if any, such document is executed, the limitation would be revived afresh from the said date of acknowledgement....." 19. The Learned Counsel for the Appellant, submits that the 'Date of Default' and the 'Date of Non Performing Asset(s)', are both distinct and different dates. Further, it is represented on behalf of the Appellant that in terms of the 'Reserve Bank of India's Master Circular - Prudential Norms on Income Recognition, Asset Classification and Provisioning pertaining to Advances', dated 01.10.2021, an 'Account', has to be declared as 'Non Performing Asset', minimum 'after 90 days of the Date of Default'. 20. According to the Appellant, 'De....
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....tion 7 of the 'I&B Code' is to be filed by a 'Financial Creditor' is provided 'Form-l' of the Adjudicating Authority Rules. Upon perusal of the Adjudicating Authority Rules and Form-1, it may be duly noted that the 'I&B Code' and the Adjudicating Authority Rules recognize that a 'Financial Creditor' being a juristic person can only act through an "Authorised Representative". Entry 5 & 6 (Part I) of Form No.1 mandates the 'Financial Creditor' to submit "name and address of the person authorised to submit application on its behalf. The authorization letter is to be enclosed. The signature block of the aforementioned Form 1 also provides for the authorised person's details is to be inserted and also includes inter alia the position of the authorised person in relation to the 'Financial Creditor'. Thus, it is clear that only an "authorised person" as distinct from "Power of Attorney Holder" can make an application under section 7 and required to state his position in relation to "Financial Creditor"." 25. The clear cut stand of the Appellant, is that, the 'Adjudicating Authority' / 'Tribunal', had failed to appreciate that ....
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....Corporate Debtor' ('Vibha Agro Tech Limited'), had availed numerous facilities, including, but not limited to the 'Cash Credit', 'Corporate Loan', 'Term Loan 1 & 2', 'Working Capital Term Loan', 'Priority Debt', 'FITL', Total Fund based from the '1st Respondent / Bank'. As a matter of fact, the 'Corporate Debtor', had 'Defaulted', in its 'payment obligations', to the '1st Respondent / Bank', and ultimately, the 'Corporate Debtor's Account', is declared as 'Non Performing Asset', on 30.04.2013. 31. According to the 1st Respondent / Bank, the 'Corporate Debtor', among other things, furnished various 'One Time Settlement Proposal', on 19.06.2015, 22.09.2017, 03.05.2019, 30.04.2021, 18.03.2021, 14.06.2021 and 26.07.2022, respectively. In fact, the 'Corporate Debtor', was indicating the 'Debt and Default', in their 'Balance Sheets', from the years 2016 to 2020, and added further, the 'Corporate Debtor', had not filed their 'Balance Sheet', after the year 2020, for the years 2021 to 2023. 32. The Learned Counsel for the 1st 0Respondent / Bank, brings it to the notice of this 'Tribunal', that the 1st Respondent / Bank, had initiated 'SARFAESI' and 'Recovery Proceedings', against the....
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....sel for the 1st Respondent / Bank, adverts to the fact that the 'Adjudicating Authority' / 'Tribunal', on 05.06.2023, had admitted the 'Application' / 'Petition', under Section 7 of the I & B Code, 2016, against the 'Corporate Debtor', and appointed an 'Interim Resolution Professional', to take over the 'Affairs' of the 'Corporate Debtor'. 37. The Learned Counsel for the 1st Respondent / Bank, points out that, in terms of the 'Application' (Filed under Section 7 of the I & B Code, 2016), by the 1st Respondent / Bank / Petitioner, the 'Outstanding Sum' in 'Default', as on 31.08.2018, was Rs.327,03,72,501.81/-, and that the 'Outstanding Sum', claimed by the 1st Respondent / Bank, was Rs.1061.15/- Crores and also the 'Bank' reliably understands that the Total Sum, claimed by all the 'Financial Creditors', is about Rs.3,400/- Crores. 38. The Learned Counsel for the 1st Respondent / Bank, refers to the Verbatim of the relevant portion of the 'Petition / Application' (Part IV - Particulars of Debt, Serial No.2), under Section 7 of the Code (vide Page 265 at Page 275 of Vol. II of the Appellant's Paper Book dated 27.06.2023), which proceeds to the following effect: "The cau....
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....v. Vibha Agro Tech Limited', had provided an opportunity, to the 1st Respondent / Bank for bringing an 'Acknowledgement of Liability', by the Corporate Debtor, on 'record', and ensure that the 'Claim', was not 'barred', under Article 137 of the Limitation Act, 1963. 43. The Learned Counsel for the 1st Respondent / Bank, points out that the 1st Respondent / Bank, was permitted to bring in the 'Balance Sheets', and if the plea of the Appellant that the 'Amendment', will only take effect from the 'Date of the Amendment', the 'Order' of the Hon'ble Supreme Court of India, will become a 'meaningless' one. Therefore, it is the stand of the 1st Respondent / Bank, that the 'Doctrine of Relation Back', will 'apply', and in fact, the 'Amendment', granted by this 'Tribunal', on 11.01.2022, can only relate back to the 'Filing of an Application' (dated 06.09.2018, but filed on 12.09.2018, before the 'Adjudicating Authority'). Also, it is the stand of the 1st Respondent Bank that the 'Ordinary Rule', is that, the 'Amendment', will relate back to the 'Original Date of Filing of the Suit'. 44. The Learned Counsel for the 1st Respondent / Bank, to fortify the contention of 'Doctrine of Relati....
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.... correctness of this legal position was admitted by the learned District Judge but he distinguished those cases from this case on the ground that those suits were instituted when the cause of action had accrued to the plaintiffs when the original plaint was filed. Satyanarainrao V. Venkataswami, A.I.R. (20) 1933 Mad. 153: (143 I.C. 504) cited before me also shows that the amendment of a plaint relates back to the date of the institution of the suit with regard to the question of limitation. It was also held in Ammaya Pillai v. Narayana Chetti, A.I.R. (12) 1925 Mad. 487 : (86 I.C. 187) that the effect of an amendment of the plaint is to date back the suit where no party is added. No party was added in the present case also." 47. The Learned Counsel for the 1st Respondent / Bank, points out that the Appellant, was classified as a 'Wilful Defaulter', by the 1st Respondent / Bank, on 25.03.2019, and further that, the 'Appellant', was also classified as 'Wilful Defaulter', by other two Banks (1) Punjab National Bank and (2) IDBI Bank, and the 'Corporate Debtor', was also declared as 'Fraud', by the 1st Respondent / Bank, on 31.07.2019. 48. The Learned Counsel for the 1st Responden....
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....ritization and Reconstruction of Financial Assets and Enforcements of Security Interest Act, 2002, by August 2015 for recovery of outstanding dues from the company. (k) All the Term Loans are shown under Note No.10 as Loans repayable on Demand (l) Interest on Term Loans and Working Capital Loans amounting to Rs.103.25 Crores is not provided in the books of accounts of the company during the Financial Year 2015-16." 53. Further, the Learned Counsel for the 1st Respondent / Bank, refers to Page 360 of Vol. II of the Appellant's Paper Book dated 27.06.2023 - Notes to the Financial Statements for the Year ended 31.03.2016, wherein, under the Head 'State Bank of India, it is mentioned as 'Second Pari passu Charge', on the following properties for Term Loans: (1) Office space situated at Plot No.21, Sector 1, HUDA Techno Enclave, Madhapur Village Serilingampally Mandal, R R District, admeasuring about 12792 Sq.ft. along with undivided Share of land 383.76 Sq. Yards, out of 2028.65 Sq. Yards and bearing S.Y.No. 64, standing in the name of Centromere Biosolutions Pvt. Ltd. Office space situated at Plot No.21, Sector 1, HUDA Techno Enclave, Madhapur Vi....
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...., Paragraph 10, it is observed as under: 10. " I cannot lose sight of the fact that the State Bank of India has Branches all over the country and a special statute, namely, the Act, was framed for its working. The Banking transactions are taken up in every Branch Office and if one were to accept the argument of the defendants, even if suits can be filed within limitation after getting the sanction from the Central Board or the Local Board, at least the first appeals, which will lie before the District Judge, would always be time barred because I do not think it would be possible to get instructions from the Central Board or the Local Board to institute an appeal within the period of thirty days." 58. The Learned Counsel for the 1st Respondent / Bank, cites to the decision in State Bank of India v. Earnest Traders Exporters, Importers & Commission Agents : 1997 (41) DRJ 659, wherein, at Page 2, Paragraph 7, it is observed as under: 7. "Thus, any Manager of the plaintiff bank would be fully authorised to sign and verify the pleadings and would also be entitled to institute the legal proceedings, for and on behalf of the bank. In this view I am supported by the de....
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.... 9 State Bank of Mauritius 91.73 10 Edelweiss ARC (Assignee of L & T Infra Finance Co. Ltd. 83.51 TOTAL 3462.18 II). Claims received from the 'Operational Creditors': S. No. Name of Creditor Total Amount Claimed (in Crores) 1 Shrinath Rotopack Pvt. Ltd. 3.12 2 KMV Projects Ltd 2.19 3 Yash Agrotech 1.81 4 Sivasakthi Agro Hybrid Seeds 1.18 5 Priyal Seeds (Prop. Rajesh Patel) 0.97 6 Walsons Services Pvt. Ltd. 0.70 7 Green Crop Agro Agency 0.57 8 Swastik Agro Agency 0.45 9 SBI CAP Trustee 0.48 10 Codak Printers 0.07 11 Transport Corporation of India Ltd. 0.05 12 ESIC, Hyderabad 0.03 TOTAL 11.62 62. On behalf of the 2nd Respondent / IRP, it is brought to the notice of this 'Tribunal' that the 'Total Claims' of both the 'Financial Creditors' and the 'Operational Creditors', comes to Rs.3,473.8/- Crores, which reflects the magnitude of the problem in the 'Corporate Debtor', which is huge and further that the 'Corporate Debtor', is not a going concern and that the 'Manufacturing Operations' of the 'Corporate Debtor', are....
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....n the 'Corporate Insolvency Resolution Process', and to 'dismiss', the instant 'Appeal', preferred by the 'Appellant'. Features of I & B Code, 2016: 68. An 'Application', under Section 7 of the I & B Code, 2016, is to be considered by an 'Adjudicating Authority' / 'Tribunal', on its own merits, taking into account of the 'available materials on record'. It is not the 'property', which is at the 'root' of the 'Code', and it is the 'cash liquidity', which is the 'foundation', for triggering the 'Corporate Insolvency Resolution Process'. 69. An 'Application', under Section 7 of the Code, is not to be turned down, by an 'Adjudicating Authority' / 'Tribunal', just on 'technical grounds'. The reason for inability of a 'Corporate Debtor', to pay its 'Debt', is not to be looked into, by an 'Adjudicating Authority' / 'Tribunal', while dealing with an 'Application' (Filed by a 'Financial Creditor', under Section 7 of the I & B Code, 2016). To put it differently, the 'situation / circumstances', under which, a 'Corporate Debtor', could not 'repay', the 'Financial Debt', need not be taken as a 'Defence', in a proceeding, under the 'Code'. 70. The 'Adjudicating Authority' / 'Tribuna....
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....he 'species' and 'confession' is 'sub-species', as per decision of the Hon'ble Supreme Court of India, in the matter of Saghoo v. State AIR 1966 SC Page 40. Acknowledgement: 76. An 'Acknowledgement of Liability', is to be in 'Writing', signed by a 'Party', against whom, the 'Property' or 'Right', is claimed, and the same is to be within the 'Limitation Period'. An 'Acknowledgement', must relate to an 'Existing Liability', as per decision Rangasami v. Thangavelu, 42 Mad 637. 77. It cannot be brushed aside that the statement on which an 'Acknowledgement Plea', is resting upon, need not amount to 'promise' and need not include the 'exact nature' of the 'liability', as per decision of Hon'ble Supreme Court of India in Lakshmiratan Cotton Mills Co. Ltd. v. Aluminium Corporation of India Ltd., AIR 1971 SC Page 1482. 78. In Law, an 'Acknowledgement', extends the 'Period of Limitation', as per decision P. Sreedevi v. P. Appu, AIR 1991, Ker 76. No wonder, the 'burden', lies upon the 'Creditor', to establish that an 'Acknowledgement', was made in time, as per decision Gur Saran v. Shib Singh, reported in AIR 1943 ALL 393 (FB). Appraisal: 79. Before the 'Adjudicating Authori....
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....90831.56 FITL 33334493275 317885271.62 EPCG BG --- --- TOTAL (A) 3270372501.81 Date on which the default occurred* * The accounts of the unit were classified NPA w.e.f. 30.04.2013 due to failed restructuring as per the provisions of classification of IRAC issued by Reserve Bank of India. Copy of the Statement of Account is filed herewith as Annexure No.2 (Page No.2 to 68) 80. Before the 'Adjudicating Authority' ('National Company Law Tribunal', Bench - I, Hyderabad'), the 'Corporate Debtor' / 'Vibha Agro Tech Limited', had filed a Counter to main CP (IB) No. 645 / 7 / HDB / 2018, among other things (vide Paragraph 8), stating that, due to unforeseen circumstances which were beyond its control, there were delayed payments made to the seed organisers, and added to the calamity, the 'Bankers', had not supported the 'Corporate Debtor', even after giving specific assurances of support, and added further, the loss of Seeds Inventory, had resulted in significant losses to the 'Corporate Debtor', which eroded its complete Networth and Rs.85 Crores dues for Seed Producing Farmers....
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....in its 'Additional Counter', had stated that the 'Statement of Accounts', furnished by the 'Bank', indicates that the 'rate of Interest', was '0.00% p.a.', whereas, on pages 4, 6, 8, 10, 12, 15 and 16, the 'rate of Interest', indicates, ranging from 11.60% to 13.75%, etc. 85. Coming to the plea of the Appellant, that this 'Tribunal', in Comp. App (AT) (INS.) No. 636 of 2020, between State Bank of India v. Vibha Agro Tech Limited on 23.08.2022, had 'allowed', the 'Appeal', 'set aside', the 'Order' of the 'Adjudicating Authority' / 'Tribunal', and remanded back the matter to the 'Adjudicating Authority', for reconsideration of the 'Amended Application' (Filed under Section 7 of the I & B Code, 2016), at the instance of the 'Appellant', etc., and that in the instant case, the 'Doctrine of Relation Back', would not 'apply', to the facts of the present case, for the reason, that the Court which allowed the 'Amendment', expressly allowed it, subject to all the contentions, being open, to the 'Corporate Director' (including the plea of 'Limitation'), indicating thereby that there are no special or extra-ordinary circumstances, in the instant case, to warrant the 'applicability of Doctr....
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....es'. Viewed in that perspective, this 'Tribunal', is of the earnest view that the 'Amendment', allowed by this 'Tribunal', in IA No. 87 of 2022 in Comp. App (AT) (INS.) No. 636 of 2020, on 11.01.2022, in crystalline manner, relates back to the filing of the Original Section 7 Application (dated 06.09.2018), on 12.09.2018, in CP (IB) No. 645 / 7 / HDB /2018, considering the fact that 'no fetter' / 'condition', was imposed, by the Hon'ble Supreme Court of India in Civil Appeal No. 2264 of 2021, filed by the 1st Respondent / Bank as an 'Appellant' or even by this 'Tribunal', when it 'allowed', the 'Amendment', on 11.01.2022. As such, the contra plea taken on behalf of the 'Appellant', that the 'Doctrine of Relation Back', will not 'apply', to the facts of the case, is 'unworthy of acceptance', as held by this 'Tribunal'. 90. As regards the Appellant's contention, that the 'Debt' is 'Time Barred', on the ground that the '1st Respondent / Bank / Financial Creditor', for the purpose of claiming extension of 'Limitation Period', can only rely upon the 'Balance Sheets' for the Financial Year 2013 - 14, 2014 - 15, signed on 16.08.2014 and 27.08.2015, respectively and no reliance can be p....
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....h Limited', had affixed their Signature on 27.08.2016, and in this Document (Balance Sheet), the 'Corporate Debtor', had acknowledged its 'Debt', in respect of the '1st Respondent / Bank / Financial Creditor / Petitioner', and the same, extends the 'Limitation' period'. Therefore, from the 'Date of Non Performing Asset' i.e., 30.04.2013, in the present case, there are numerous 'Acknowledgement of Debts' right from the year 2014, and this 'Tribunal', in a cocksure fashion, holds that there is 'no bar' of 'Limitation', as on 2016, and the point is so answered, against the 'Appellant'. 94. In so far as the plea of the Appellant that Section 7 Application, filed by the 1st Respondent / Bank / Financial Creditor / Petitioner (under Section 7 of the I & B Code, 2016), that the same was filed before the 'Adjudicating Authority' / 'Tribunal', 'without proper Authorisation', this 'Tribunal', points out that in the teeth of Regulations 76 and 77 of the State Bank of India, General Regulations, 1955 & Gazette Notifications, the amended Application, was signed by one Mr. Vijay Kumar, who was the Asst. General Manager of the 'Bank', who derived his authority from the aforesaid Regulations, a....
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....ction 7 Application', with a view to incorporate the case, based on the 'Acknowledgement', as contained in the Balance Sheets', allegedly of the 'Respondent / Corporate Debtor', keeping in mind of the fact that IA No. 87 of 2022 in Comp. App (AT) (INS.) No. 636 of 2020, was filed by the 1st Respondent / Bank, before this 'Tribunal', on 17.11.2021, and the same being 'allowed' on 11.01.2022, and later, on 23.08.2022, this 'Tribunal', had 'disposed of' the Comp. App (AT) (INS.) No. 636 of 2020 (filed by the 1st Respondent / Financial Creditor / Bank), by 'allowing', the said 'Appeal', by setting aside the 'impugned order', passed by the 'Adjudicating Authority', and remitted the matter back to the 'Adjudicating Authority', to reconsider the 'Amendment Application', filed under Section 7 of the Code, at the instance of the 'Appellant', etc., this 'Tribunal', bearing in mind a 'primordial fact' that, no condition was imposed, by the Hon'ble Supreme Court of India, while permitting the 'Amendment', comes to a consequent conclusion that it cannot be said that the 'Amendment', cannot relate back to the 'Date of Filing of the Petition', coupled with the decision of the Hon'ble Supreme Cour....
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....by the several 'Directors', several months, after the 'Balance Sheet' date, the 'Acknowledgement of Debt', shown in the 'Balance Sheet', can relate back to the 'Balance Sheet' date and not the 'Date', on which, the 'Directors' signed it. 102. A 'Statement in a Balance Sheet', where, in the 'List of Creditors', the 'Liability', is 'accepted', by the 'Company', and if there is no 'Dispute', about the 'Liability', it clearly amounts to an 'Acknowledgment of Liability', as per decision in Sheetal Fabrics v. Coir Cushions Ltd., reported in 2005 (120) DLT 693. 103. At this stage, this 'Tribunal', points out that in Rishi Pal Gupta v. S.J. Knitting & Finishing Mills Pvt. Ltd., reported in 1998 (73) DLT, it is held, that in view of the aforesaid 'Acknowledgement of Debt', in 'Balance Sheet', as also in 'Reply', sent by the 'Respondent', through one of its 'Directors', constitutes an 'acknowledgement in writing', within Section 18 of the 'Limitation Act'. 104. Further, this 'Tribunal' points out in the decision of the Hon'ble Supreme Court of India in Mahabir Cold Storage v. Commissioner of Income Tax, Patna, reported in AIR 1991 SC 1357, it is observed and held that the 'Entries',....
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....f Debt', at Page 79), from the 'Corporate Debtor' / 'Vibha Agro Tech Limited'. According to the 1st Respondent / Bank, the 'Outstanding Sum', claimed before the 'Interim Resolution Professional', is Rs.1,061.15 Crores. 110. It is the version of the 1st Respondent / Bank / Financial Creditor / Petitioner, that the 'Total Sum', claimed by all the 'Financial Creditors', is around Rs.3,400/- Crores. Further, according to the 1st Respondent / Bank / Financial Creditor / Petitioner, the Punjab National Bank and IDBI Bank, had termed the 'Appellant', as a 'Wilful Defaulter', besides the 'Corporate Debtor', was declared as 'Fraud', by the 'Bank', on 31.07.2019. Besides these, it is brought to the notice of this 'Tribunal', on behalf of the 1st Respondent / Bank / Financial Creditor / Petitioner that the 'Appellant', is the same 'Director', who have furnished the seven 'One Time Settlement Proposals' periodically, ranging from 19.06.2015 till 26.07.2022. 111. One cannot remain in oblivion of a vital fact that to commence a 'Corporate Insolvency Resolution Process' proceedings, by the 'Financial Creditor', against the 'Corporate Debtor' (under Section 7 of the I & B Code, 2016), the tw....