Uniexcel Limited vs Uniexcel Developers Private Limited

Uniexcel Limited ...Appellant

Vs.

Uniexcel Developers Pvt. Ltd. ...Respondent

Present For Appellant: Mr. Vivek Sood, Sr. Advocate with Mr. Rachit Batra, Advocates. For Respondent: Mr. Saurabh Kalia, Mr. Abhijeet Sinha, Mr. Chaitanya Bansal, Mr. Aditya Shukla & Ms. Heena Kochar, Advocates.

ORDER

21.11.2022: The Appellant/'Uniexcel Limited'/'Financial Creditor' has

preferred this Appeal been aggrieved and dissatisfied by the Order dated

10.02.2021, passed by the Learned Adjudicating Authority (National Company

Law Tribunal, New Delhi, Bench-II) in IB/21(ND)/2021, whereby the

Adjudicating Authority dismissed the Application filed under Section 7 of the

Insolvency and Bankruptcy Code, 2016, based on the Judgement of this Tribunal

in the case of 'V. Padmakumar' Vs. 'Stressed Assets Stabilisation Fund (SAFS)

& Anr.', Comp. App. (AT) (Ins.) No. 57/2020 on the ground that it is 'barred by

Limitation'.

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2. From the perusal of the record, it appears that the matter was taken up for

hearing on 22.10.2022, on that date, Learned Counsel for the Respondent Mr.

Abhijit Sinha had placed the copy of the Order dated 25.02.2022 passed by the

Hon'ble Supreme Court in Civil Appeal No. 3719/2022 wherein the Hon'ble

Supreme Court passed the following Orders:

"Permission to file appeal is granted.

Issue notice.

There shall be stay of the following in the meanwhile:

1. Corporate Insolvency Resolution Process of the Respondent No. 2; and

2. Judgment and final order dated 16.12.2021 passed by the NCLAT in company Appeal (AT) (Insolvency) No. 128/2021."

3. The matter was directed to be listed today, the Appeal was to be heard on

merits i.e., on a question of Limitation, as the Appeal under Section 7 Application

was dismissed as 'barred by Limitation'.

4. Heard the Counsel for the Appellant.

5. Counsel for the Appellant in Written Submissions and course of final

arguments submitted that the Judgement of this Tribunal in 'V. Padmakumar'

(Supra) has been overruled by the Hon'ble Supreme Court in the case of 'Asset

Reconstruction Company (India) Ltd.' Vs. 'Bishal Jaiswal & Anr.' Civil Appeal

No. 323/2021 and referred to paragraph 22 of the Judgement and submitted that the

Comp. App. (AT) (Ins.) No. 771/2021 -3-

Court may consider the acknowledgement in the Balance Sheet for extending the

period of Limitation under Section 18 of the Limitation Act, 1962.

6. Counsel for the Appellant further submitted that this fact was not considered

by the Learned Adjudicating Authority while passing the Impugned Order.

7. Counsel for the Respondents on the other hand in the course of argument

and in his Written Submissions referred to page 155 of the Appeal Paper Book and

submitted that from the perusal of the Balance Sheet of Uniexcel Developers

Private Limited/'Corporate Debtor', name of the Shareholders is not referred so the

Tribunal rightly passed the Order. On the other hand, by way of his Reply, Counsel

for the Appellant while referring to pages 164 and 166 submitted that from the

perusal of the Balance Sheet of the 'Corporate Debtor' as on 31.03.2015 under the

heading 'Share Application Money (Pending allotment)' the amount given is

Rs.1,14,02,640/- and this amounts to 'Acknowledgement of Debt', which has not

been considered by the Adjudicating Authority.

8. Further, Counsel for the Appellant also submits that this is the second round

of Litigation between the parties and earlier in the Order of this Tribunal dated

26.11.2019 'Uniexcel Developers Pvt. Ltd.' Vs. 'Uniexcel Ltd.' in Comp. App.

(AT) (Ins.) No. 962/2019, the main Bench of this Tribunal, passed the following

Orders:

Comp. App. (AT) (Ins.) No. 771/2021 -4-

"The reasons and finding as recorded in paragraph -10 of the Impugned Order regarding it being financial debt, is not agitated before us and we find no reason to disturb the finding.

10. We are disposing this appeal with liberty to the Respondent - Financial Creditor to take necessary steps (which were found wanting in paragrqaph-11 of the Impugned Order) and it may file fresh application under Section 7 of IBC, if so advised. In the circumstance, we keep question of limitation open for consideration when such application is moved.

11. Disposed accordingly. No costs."

9. Keeping in view that the Adjudicating Authority has placed reliance on 'V.

Padmakumar' (Supra) and has dismissed the Section 7 Application, is 'barred by

Limitation' and thereafter the Hon'ble Supreme Court has reversed the ratio of 'V.

Padmakumar' (Supra) and also the fact that the Hon'ble Supreme Court has laid

down in a catena of Judgements regarding Acknowledgement under Section 18 of

the Limitation Act, 1962 and also having regard to the fact that the issues

pertaining to the Financial Statements/Balance Sheets apart from other issues

raised by both the parties has not been addressed to by the Adjudicating Authority.

We find it a fit case to allow this Appeal and remand the matter back to the

Learned Adjudicating Authority to decide the matter both on Limitation and on

merits as expeditiously as practicable as it is the case of second round of Litigation.

Comp. App. (AT) (Ins.) No. 771/2021 -5-

10. Both parties are directed to appear before the Adjudicating Authority on

20.12.2022. It is reiterated that we have not expressed any view on any of the

issues in this case.

[Justice Anant Bijay Singh] Member (Judicial)

[Ms. Shreesha Merla] Member (Technical) himanshu/kam

Comp. App. (AT) (Ins.) No. 771/2021