Abhimanyu Agrawal vs Bank Of India & Anr

Abhimanyu Agrawal ...Appellant

Versus

Bank of India & Anr. ...Respondents

Present: For Appellant: Mr. Akshat Agrawal, Adv. For Respondents: Mr. Aditya Kumar, for R1 Mr. Rahul Pandey, Adv. for R2

ORDER

(Per: Justice Rakesh Kumar Jain)

28.09.2022: This appeal is directed against the order dated 13.03.2020

passed by the Adjudicating Authority (National Company Law Tribunal,

Indore Bench at Ahmedabad) by which an application filed under Section 7

of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') by Respondent

No. 1 has been admitted.

2. The Appellant is the suspended director of M/s Krishna Oils & Proteins

Pvt. Ltd. (Respondent No. 2)/Corporate Debtor who is aggrieved against the

order of admission.

3. Shorn of unnecessary details, the Corporate Debtor availed various

financial assistance from the Financial Creditor/Respondent No. 1. The

account of the Corporate Debtor was classified as NPA on 02.08.2014. The

Financial Creditor initiated the proceedings under the SARFAESI Act, 2002

and also filed an application under Section 7 of the Code before the Adjudicating Authority. In part 'IV' of the application the date of default has

been mentioned as 02.08.2014. The application was contested before the

Adjudicating Authority by the Appellant on the ground that the same is barred

by limitation having been filed on 13.03.2019 because the limitation to file

the application is of three years as provided in Article 137 of the Limitation

Act, 1963 (in short 'Act') which triggers on the date when the right to apply

accrues. However, the Adjudicating Authority rejected the contention of the

Appellant on the ground that there are entries in its account maintained by

the Respondent No. 1 dated 25.01.2017 and the application under Section 7

of the Code has been filed on 13.03.2019, therefore, it was within the period

of limitation counting the same from 25.01.2017.

4. Counsel for the Appellant vehemently argued that the said amount has

been credited by the ECGC and not by the Appellant. It is therefore, submitted

that his case does not fall either under Section 18 or 19 or even Section 20 of

the Act for the purpose of extension of limitation on account of the alleged

acknowledgement.

5. On the other hand, Counsel for Respondent has submitted that though

the amount credited in his account on 25.01.2017 by the Respondent

tantamounts to acknowledgment but even otherwise, the balance sheets of

the Appellant up to the year 2018 shows the amount to be claimed by the

Respondent and therefore, it is an acknowledgement in view of the decisions

of the Hon'ble Supreme Court in the case of 'Asset Reconstruction Company

(India) Limited Vs. Bishal Jaiswal & Anr.' 2021 SCC Online SC 321 and 'Dena Bank (now Bank of Baroda) Vs. C. Shivakumar Reddy & Anr.' 2021 10 SCC

330.

6. In rebuttal, Counsel for the Appellant has admitted that the balance

sheets, referred to, by the Respondent were before the Adjudicating Authority

being part of record but has submitted that he was not given ample

opportunity to explain the same. However, he has conceded before us that

the same being on record of the company, cannot be denied.

7. We have heard Counsel for the parties and perused the record with

their able assistance.

8. The Appellant contested the application filed under Section 7 of the

Code before the Adjudicating Authority only on the ground of limitation.

9. His precise case was that since the date of default mentioned in part

'IV' of the application is 02.08.2014 and the application under Section 7 has

been filed on 13.03.2019, therefore, it was beyond the period of three years

and was thus, barred by limitation.

10. He has argued that the entry of credit dated 25.01.2017 cannot be

attributed to the Appellant as it has been made at the instance of 3rd party

and does not fall in any of the provisions of the limitation Act much less

Section 18 and 20 of the Act. We are not dealing with this aspect of the matter

for the reasons that during the course of hearing, Counsel for the Respondent

has drawn our attention towards the balance sheets of the Appellant,

available on record of the Adjudicating Authority, in which the amount

claimed by the Respondent has been duly reflected.

11. Once the amount is reflected in the latest balance sheets pertaining to

the year 2017-18, the decisions in the case of Dena Bank (Supra) and Bishal

Jaiswal (Supra) applies with full force in which it has been held that the

entries in books of accounts and/or balance sheets of a corporate debtor

would amount to an acknowledgement under Section 18 of the limitation Act.

12. No other point has been raised.

13. In view of the aforesaid facts and circumstances, we do not find any

material in the present appeal for the purpose of interference in the order of

the Adjudicating Authority and hence, the present appeal is hereby

dismissed. No costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

SC/RR