LAW FOR ALL : Whether the NCLAT rightly held that the Petition of the Appellant Bank under Section 7 of the IBC, was barred by limitation. ? = This Court sees no reason why an offer of One Time Settlement of a live claim, made within the period of limitation, should not also be construed as an acknowledgment to attract Section 18 of the Limitation Act. = 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 acknowledgement of the debt by the Corporate Debtor before expiry of the period of limitation of three years, in which case the period of limitation would get extended by a further period of three years. Moreover, a judgment and/or decree for money in favour of the Financial Creditor, passed by the DRT, or any other Tribunal or Court, or the issuance of a Certificate of Recovery in favour of the Financial Creditor, would give rise to a fresh cause of action for the Financial Creditor, to initiate proceedings under Section 7 of the IBC for initiation of the Corporate Insolvency Resolution Process, within three years from the date of the judgment and/or decree or within three years from the date of issuance of the Certificate of Recovery, if the dues of the Corporate Debtor to the Financial Debtor, under the judgment and/or decree and/or in terms of the Certificate of Recovery, or any part thereof remained unpaid.

Wednesday, August 4, 2021

Whether the NCLAT rightly held that the Petition of the Appellant Bank under Section 7 of the IBC, was barred by limitation. ? = This Court sees no reason why an offer of One Time Settlement of a live claim, made within the period of limitation, should not also be construed as an acknowledgment to attract Section 18 of the Limitation Act. = 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 acknowledgement of the debt by the Corporate Debtor before expiry of the period of limitation of three years, in which case the period of limitation would get extended by a further period of three years. Moreover, a judgment and/or decree for money in favour of the Financial Creditor, passed by the DRT, or any other Tribunal or Court, or the issuance of a Certificate of Recovery in favour of the Financial Creditor, would give rise to a fresh cause of action for the Financial Creditor, to initiate proceedings under Section 7 of the IBC for initiation of the Corporate Insolvency Resolution Process, within three years from the date of the judgment and/or decree or within three years from the date of issuance of the Certificate of Recovery, if the dues of the Corporate Debtor to the Financial Debtor, under the judgment and/or decree and/or in terms of the Certificate of Recovery, or any part thereof remained unpaid.

Whether the NCLAT rightly held that the Petition of the Appellant Bank under Section 7 of the IBC, was barred by limitation. ?

apex court held that

Once a claim fructifies into a final judgment and order/decree, upon adjudication, and a certificate of Recovery is also issued authorizing the creditor to realize its decretal dues, a fresh right accrues to the creditor to recover the amount of the final judgment and/or order/decree and/or the amount specified in the Recovery Certificate. 139. The Appellant Bank was thus entitled to initiate proceedings under Section 7 of the IBC within three years from the date of issuance of the Recovery Certificate. The Petition of the Appellant Bank, would not be barred by limitation at least till 24th May, 2020. 71

While it is true that default in payment of a debt triggers the right to initiate the Corporate Resolution Process, and a Petition under Section 7 or 9 of the IBC is required to be filed within the period of limitation prescribed by law, which in this case would be three years from the date of default by virtue of Section 238A of the IBC read with Article 137 of the Schedule to the Limitation Act, the delay in filing a Petition in the NCLT is condonable under Section 5 of the Limitation Act unlike delay in filing a suit. Furthermore, as observed above Section 14 and 18 of the Limitation Act are also applicable to proceedings under the IBC.

Section 18 of the Limitation Act cannot also be construed with pedantic rigidity in relation to proceedings under the IBC. This Court sees no reason why an offer of One Time Settlement of a live claim, made within the period of limitation, should not also be construed as an acknowledgment to attract Section 18 of the Limitation Act. In Gaurav Hargovindbhai Dave (supra) cited by Mr. Shivshankar, this Court had no occasion to consider any proposal for one time settlement. Be that as it may, the Balance Sheets and Financial Statements of the Corporate Debtor for 2016-2017, as observed above, constitute acknowledgement of liability which extended the limitation by three years, apart from the fact that a Certificate of Recovery was issued in favour of the Appellant Bank in May 2017. The NCLT rightly admitted the application by its order dated 21st March, 2019. 72

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 acknowledgement of the debt by the Corporate Debtor before expiry of the period of limitation of three years, in which case the period of limitation would get extended by a further period of three years.

Moreover, a judgment and/or decree for money in favour of the Financial Creditor, passed by the DRT, or any other Tribunal or Court, or the issuance of a Certificate of Recovery in favour of the Financial Creditor, would give rise to a fresh cause of action for the Financial Creditor, to initiate proceedings under Section 7 of the IBC for initiation of the Corporate Insolvency Resolution Process, within three years from the date of the judgment and/or decree or within three years from the date of issuance of the Certificate of Recovery, if the dues of the Corporate Debtor to the Financial Debtor, under the judgment and/or decree and/or in terms of the Certificate of Recovery, or any part thereof remained unpaid.

There is no bar in law to the amendment of pleadings in an application under Section 7 of the IBC, or to the filing of additional documents, apart from those initially filed along with application under Section 7 of the IBC in Form-1. In the absence of any express provision which either prohibits or sets a time limit for filing of additional 73 documents, it cannot be said that the Adjudicating Authority committed any illegality or error in permitting the Appellant Bank to file additional documents.

Needless however, to mention that depending on the facts and circumstances of the case, when there is inordinate delay, the Adjudicating Authority might, at its discretion, decline the request of an applicant to file additional pleadings and/or documents, and proceed to pass a final order.

In our considered view, the decision of the Adjudicating Authority to entertain and/or to allow the request of the Appellant Bank for the filing of additional documents with supporting pleadings, and to consider such documents and pleadings did not call for interference in appeal.

For the reasons discussed above, the impugned judgment and order is unsustainable in law and facts. The appeal is accordingly allowed, and the impugned judgment and order of the NCLAT is set aside.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1650 OF 2020

Dena Bank (now Bank of Baroda) ....Appellant(s)

versus

C. Shivakumar Reddy and Anr. .…Respondent(s)

J U D G M E N T

Indira Banerjee, J.

This Appeal under Section 62 of the Insolvency and Bankruptcy

Code, 2016 (IBC) is against a judgment and final order dated 18th

December 2019 passed by the National Company Law Appellate

Tribunal (NCLAT), allowing Company Appeal (AT) (Insolvency) No.407 of

2019, filed by the Respondents and setting aside an order dated 21st

March 2019 passed by the Adjudicating Authority/National Company

Law Tribunal (NCLT), Bengaluru, whereby the Adjudicating Authority had

admitted the Petition being CP(IB) No.244/BB/2018 filed by the

Appellant Bank against the Respondent No.2 (Corporate Debtor) under

Section 7 of the IBC. The NCLAT held that the said Petition of the

Appellant Bank under Section 7 of the IBC, was barred by limitation.

The Respondent No.1 is a Director of the Corporate Debtor.

2. By a letter dated 23rd December, 2011 the Appellant Bank had

sanctioned Term Loan and Letter of Credit Cum Buyers’ Credit in favour

of the Corporate Debtor, with an upper limit of Rs.45.00 Crores.

3. The said Term Loan was to be repaid in 24 quarterly instalments of

Rs.187.50 lakhs, which were to commence two years after the date of

disbursement, and the entire Term Loan was to be repaid in eight years,

inclusive of the implementation period of one year and the moratorium

period.

4. The Corporate Debtor executed various documents including

Demand Promissory Notes, Letters of General Lien, etc. in favour of the

Appellant Bank and also mortgaged its lease hold rights in its

immovable property specified in the petition of appeal, by depositing

the Title of Deeds of the said immovable property with the Appellant

Bank.

5. On 20th September, 2013 the Corporate Debtor defaulted in

repayment of its dues to the Appellant Bank. The Loan Account of the

Corporate was therefore declared Non Performing Asset (NPA) on 31st

December 2013.

6. The Corporate Debtor addressed a letter dated 24th March 2014 to

the Appellant Bank, making a request for restructuring the Term Loan.

The Appellant Bank did not accede to the request.

7. On 22nd December 2014, the Appellant Bank issued legal notice to

the Corporate Debtor as well as the Respondent No.2, calling upon them

to make payment of Rs.52.12 crores, claimed to be due from the

Corporate Debtor as on 22nd December 2014. The Corporate Debtor did

not make the payment.

8. On or about 1st January 2015, the Appellant Bank filed an

application being O.A. No.16/2015 under Section 19 of the Recovery of

Debts Due to Banks and Financial Institutions Act, 1993, now known as

the Recovery of Debts and Bankruptcy Act, 1993 and hereinafter

referred to as ‘the Debt Recovery Act’ before the Debt Recovery Tribunal

(in short, DRT) Bangalore for recovery of its outstanding dues of

Rs.52,12,49,438.60 as on 22nd December 2014.

9. By a letter dated 5th January 2015, the Corporate Debtor replied to

the said notice dated 22nd December 2014, inter alia, requesting once

again, that the loan be restructured. Mr. Dhruv Mehta, Senior Advocate,

appearing on behalf of the Appellant Bank submitted that the Corporate

Debtor had accepted its liability to the Appellant Bank, by its aforesaid

letter dated 5th January 2015.

10. On or about 3rd March 2017, while proceedings were pending in

the DRT, the Corporate Debtor gave a proposal for one time settlement

of the Term Loan Account, upon payment of Rs.5.50 crores. The

proposal was, however, not accepted by the Appellant Bank.

11. On 27th March 2017, the Debt Recovery Tribunal, Bengaluru

passed a final judgment and order/decree against the Corporate Debtor

in the said O.A. No.16/2015, for recovery of Rs.52,12,49,438.60 with

future interest at the rate of 16.55% per annum, from the date of filing

the application till the date of realization.

12. On 25th May 2017, the Debt Recovery Tribunal issued a Recovery

Certificate No. 2060/2017, in favour of the Appellant Bank for recovery

of Rs.52,12,49,438.60 from the Corporate Debtor. Thereafter, on 19th

June 2017, Corporate Debtor once again gave the Appellant Bank a

proposal for One Time Settlement to mutually settle the loan amount.

13. Mr. Mehta appearing for the Appellant Bank pointed out, that the

Corporate Debtor had, in its Annual Reports for the financial years 2016-

2017 and 2017-2018, acknowledged its liability in respect of the loan

taken by it from the Appellant Bank.

14. On 1st October 2018, the Appellant Bank issued a Demand Notice

to the Corporate Debtor in Form-3 contained in the Insolvency and

Bankruptcy (Application to Adjudicating Authority) Rules, 2016,

hereinafter referred to as the ‘2016 Adjudicating Authority Rules’, and

on 12th October 2018, the Appellant Bank filed the Petition being CP(IB)

No.244/BB/2018 before the Adjudicating Authority under Section 7 of

the IBC in Form-1 given in the Annexure to the 2016 Adjudicating

Authority Rules.

15. About three months thereafter, by a Notification being GSR

No.2(e) dated 2nd January 2019 the Department of Financial Services,

Ministry of Finance, Government of India amalgamated Vijaya Bank,

Dena Bank and Bank of Baroda.

16. On 9th January 2019, the Appellant Bank filed an application

before Adjudicating Authority under Rule 11 of the National Company

Law Tribunal Rules 2016 hereinafter referred to as the ‘NCLT Rules’, read

with Rule 4 of the 2016 Adjudicating Authority Rules, being I.A.

No.27/2019 dated 9th January 2019 in CP(IB) No.244/BB/2018, for

permission to place on record additional documents, including the final

judgment and order dated 27.03.2017 of the DRT in OA No.16/2015 and

the Recovery Certificate No.2060/2017 dated 25.05.2017 issued by the

DRT.

17. On 2nd February 2019, the Corporate Debtor filed its preliminary

objection to the Petition filed by the Appellant Bank under Section 7 of

the IBC, inter alia, contending that the said Petition was barred by

limitation.

18. By an order dated 4th February 2019, the Adjudicating Authority

allowed the application of the Appellant Bank being I.A No. 27/2019 in

CP (IB) No.244/BB/2018, and directed the Appellant Bank to file an

amended petition enclosing the documents referred to in the

Application being I.A. No.27/2019. The Registry was directed to permit

the Counsel for the Appellant Bank to amend the Company Petition

accordingly.

19. On or about 5th March 2019, the Appellant Bank filed another

application under Rule 11 of the NCLT Rules, being I.A. No.131 of 2019

in CP(IB) No.244/BB/2018, before the Adjudicating Authority for

permission to place on record additional documents, including the letter

dated 03.03.2017 of the Corporate Debtor to the Appellant Bank

proposing a One Time Settlement, the Annual Report of the Corporate

Debtor for the years 2016-2017, the Financial Statement of the

Corporate Debtor for the period from 1st April 2016 to 31st March 2017

and the Financial Statement of the Corporate Debtor, for the period

from 1st April 2017 to 31st March 2018. By an order dated 6.03.2019 in

I.A. No.131 of 2019, the Appellant Bank was permitted to file the

documents in the Registry.

20. By an order dated 21st March 2019 the Adjudicating Authority

admitted the Petition under Section 7 of the IBC, being CP (IB)

No.244/BB/2018, and appointed an Interim Resolution Professional. The

objection of the bar of limitation, raised on behalf of the Corporate

Debtor was considered at length, but rejected by the Adjudicating

Authority (NCLT).

21. On 6th April 2019, the Respondent No.1, filed an appeal being

CA(AT) (Ins) No.407/2019 before the NCLAT under Section 61 of the IBC.

The Appellant Bank filed its written statement supporting the order of

the Adjudicating Authority dated 21st March 2019 admitting the Petition

of the Appellant Bank under Section 7 of the IBC.

22. After hearing the Appellant Bank, the Respondent No.1 and the

Corporate Debtor, the NCLAT set aside the order dated 21st March 2019

passed by the Adjudicating Authority (NCLT) Bengaluru and dismissed

the Petition filed by the Appellant Bank under Section 7 of the IBC,

holding that the said application was barred by limitation.

23. The issue which arises for consideration of this Court, in this

appeal is, whether the NCLAT has erred in law in arriving at the

conclusion that, the Petition filed by the Appellant Bank under Section 7

of the IBC was barred by limitation, and setting aside the order dated

21st March 2019 passed by the Adjudicating Authority, admitting the said

Petition.

24. In other words, the main question involved in this appeal is,

whether a Petition under Section 7 of the IBC would be barred by

limitation, on the sole ground that it had been filed beyond a period of 3

years from the date of declaration of the loan account of the Corporate

Debtor as NPA, even though the Corporate Debtor might subsequently

have acknowledged its liability to the Appellant Bank, within a period of

three years prior to the date of filing of the Petition under Section 7 of

the IBC, by making a proposal for a One Time Settlement, or by

acknowledging the debt in its statutory Balance Sheets and Books of

Accounts.

25. Another question which arises for the consideration of this Court

is, whether a final judgment and decree of the DRT in favour of the

Financial Creditor, or the issuance of a Certificate of Recovery in favour

of the Financial Creditor, would give rise to a fresh cause of action to the

Financial Creditor to initiate proceedings under Section 7 of the IBC

within three years from the date of the final judgment and decree,

and/or within three years from the date of issuance of the Certificate of

Recovery.

26. A third issue which arises for adjudication of this Court is, whether

there is any bar in law to the amendment of pleadings, in a Petition

under Section 7 of the IBC, or to the filing of additional documents,

apart from those filed initially, along with the Petition under Section 7 of

the IBC in Form-1.

27. Mr. Mehta appearing on behalf of the Appellant Bank submitted

that the Adjudicating Authority had passed its order dated 21st March

2019, admitting the Petition of the Appellant Bank under Section 7 of

the IBC, after taking into consideration the documents filed by the

Appellant Bank along with its interim applications being I.A. No. 27 of

2019 and I.A. No.131 of 2019, and arriving at the finding that the

Petition filed by the Appellant Bank under Section 7 of the IBC was not

barred by limitation.

28. Mr. Mehta submitted that NCLAT has allowed the appeal of the

Respondent No.1, set aside the order of the Adjudicating Authority, and

dismissed the Petition of the Appellant Bank under Section 7 of IBC,

recording a finding that there was nothing on record that suggested that

the Corporate Debtor had acknowledged its debt to the Appellant Bank.

The Appellate Authority has ignored the documents filed by the

Appellant Bank along with I.A. No.131 of 2019, which had duly been

allowed by the Adjudicating authority.

29. Mr. Mehta pointed out that, the NCLAT cited the judgments of this

Court in Jignesh Shah and Anr. v. Union of India and Anr.

1 and

Gaurav Hargovindbhai Dave v. Asset Reconstruction Company

(India) Ltd. and Anr.

and held that the account of the Corporate

Debtor having been declared as NPA on 31st December 2013, the Petition

under Section 7 of the IBC, filed after five years was barred by limitation.

1. 2019 SCC online SC 1254: (2019) 10 SCC 750

2. 2019 SCC Online SC 1239: (2019) 10 SCC 572

30. Mr. Mehta argued that the NCLAT had returned a finding that there

was nothing on record to show that the Corporate Debtor had admitted

its debt to the Appellant Bank, overlooking relevant materials on record,

including:

(i) Admission of the Corporate Debtor of payment of

Rs.111 lakhs on 28th March, 2014 towards interest on

the loan.

(ii) Letter dated 5th January, 2015 of the Corporate Debtor

to the Appellant Bank, in response to the Demand

Notice, acknowledging its liability to the Appellant Bank.

(iii) A statement of objection filed by the Corporate Debtor

in the DRT, Bangalore on or about 9th December 2015,

denying the Appellant Bank’s claim of Rs.52,04,438 as

baseless, but admitting that part of the amount was

due.

(iv) The Financial Statements and Balance Sheets of the

Corporate Debtor for the years 2016-2017 (year ending

31st March 2017) and for the years 2017-2018 (year

ending 31st March 2018).

(v) Offer made by the Corporate Debtor on 03.03.2017 to

settle its dues to the Appellant Bank on one time

payment of Rs.5.5 crores.

(vi) Final judgment and decree/order dated 27th March, 2017

passed by the DRT, Bengaluru, in favour of the

Appellant Bank for an amount of Rs.52,12,49,438.60 in

O.A. No.16/2015, with future interest at 16.55% per

annum and the Recovery certificate No.2060/2017

issued by the DRT on 25th May 2017.

31. Mr. Mehta argued that the Corporate Debtor had admitted having

paid Rs.111 lakhs towards interest on 28th March, 2014. This showed

that the loan was alive and there was a subsisting jural relationship. On

03.03.2017, within three years, the Corporate Debtor had submitted a

proposal for One Time Settlement (OTS) of its Term Loan Account with

the Appellant Bank. In doing so, the Corporate Debtor had

acknowledged its liability to the Appellant Bank. The Petition under

Section 7 of the IBC was filed well within three years from the date of

such acknowledgement.

32. Mr. Mehta also pointed out that on 27th March 2017 the DRT,

Bengaluru had passed a final judgment and order/decree for an amount

of Rs.52,12,49,438.60 in favour of the Appellant Bank in O.A. No.16/2015

along with future interest at 16.55% per annum with monthly rests, from

the date of application till the date of realisation, and had issued a

Recovery Certificate No.2060 of 2017, dated 25th May 2017 for

realisation of the said amount from the Corporate Debtor and the

Respondent No.1. The Appellant Bank filed the Petition under Section 7

of the IBC for initiation of the Corporate Insolvency Resolution Process

well within 3 years from the aforesaid dates.

33. Mr. Mehta also submitted that the Corporate Debtor had in its

financial statements for the period from 1st April 2016 to 31st March 2017

and the period from 1st April 2017 to 31st March 2018, admitted that the

Corporate Debtor had defaulted in repayment of its loan to the Appellant

Bank. The financial statements of the Corporate Debtor, for the period

from 1st April 2017 to 31st March 2018 reflect dues of Rs.67 crores to the

Appellant Bank along with interest as on 31st March 2018, but excluding

penal interest.

34. Mr. Mehta argued that the Corporate Debtor had thus admitted the

existence of jural relationship of debtor and creditor, between the

Corporate Debtor and the Appellant Bank, which is evident from the

documents referred to above. In their objections filed in this Court, the

Respondents have admitted that they deposited Rs.111 lakhs in the

current account of the Corporate Debtor with the Appellant Bank on 28th

March 2014, thereby acknowledging that the jural relationship of debtor

and creditor between the Corporate Debtor and the Appellant Bank

continued after 31st December, 2013.

35. Mr. Mehta has also referred to the Counter Affidavit filed by the

Respondent No.1 and the Corporate Debtor, where they admitted that

the Corporate Debtor had sent a letter dated 3rd March 2017 to the

Appellant Bank, offering to make payment of Rs.5.5 crores by way of

One Time Settlement. Moreover, the judgment and order/decree dated

27th March, 2017 passed by the DRT and the Recovery Certificate

No.2060/2017 referred to above, which gave rise to a fresh cause of

action to the Appellant Bank to initiate proceedings against the

Corporate Debtor under Section 7 of the IBC, are matters of record and

in any case, duly admitted.

36. Relying on the judgments of this Court in Sesh Nath Singh and

Anr. v. Baidyabati Sheoraphuli Cooperative Bank Ltd. And Anr.

Laxmi Pat Surana v. Union Bank of India and Ors.

and Asset

Reconstruction Company (India) Limited. v. Bishal Jaiswal and

Ors.

Mr. Mehta argued that Section 18 of the Limitation Act applied to

proceedings under the IBC. This issue was no longer res integra.

37. On the other hand, Mr. Goutham Shivshankar appearing on behalf

of the Respondents, submitted that under the scheme of the IBC, NCLAT

is the final forum for determination of facts. Mr. Shivshankar argued that

there is a factual determination by the NCLAT that records reveal no

acknowledgement of debt for the purpose of extending limitation.

38. Mr. Shivshankar contended the NCLAT has duly dealt with the

question of acknowledgement holding:

“In the present case there is nothing on record to suggest that the

‘Corporate Debtor’ acknowledged the debt within three years and

agreed to pay the debt. The application moved by ‘Corporate Debtor’

to restructure the debt or payment of the interest does not amount to

acknowledgement of debt. There is nothing on record to suggest that

the ‘Corporate Debtor’ or its authorized representative by its signature

has accepted or acknowledged the debt within three years from the

date of default or from the date when the account was declared NPA,

i.e. on 31

December 2013. The Balance Sheet of the ‘Corporate

Debtor’ for the year 2016-2017 filed after 31

March 2017 cannot be

3. 2021 SCC Online SC 244

4. 2021 SCC Online SC 267

5. 2021 SCC Online SC 321

termed to be a document of acknowledgment in terms of section 18 of

the Limitation Act.”

39. According to Mr. Shivshankar, the NCLAT was entirely right in

coming to the factual conclusion that the Petition of the Appellant Bank

under Section 7 of the IBC was barred by limitation. Mr. Shivshankar

argued that NCLT arrived at this conclusion on the basis of facts and

materials on record and it cannot be said that the conclusion is perverse

or otherwise warrants intervention of this Court in a Second Appeal,

restricted to questions of law under Section 62 of the IBC.

40. Mr. Shivshankar argued that this appeal has been filed on the

basis of documents that were brought on record before the Adjudicating

Authority (NCLT) at a belated stage, in a manner contrary to the

provisions of IBC and the law laid down by this Court.

41. Mr. Shivshankar emphatically argued that Appellant Bank filed its

Petition under Section 7 of the IBC on 12th October 2018, about five

years after the date of default and was thus well beyond the period of

limitation of three years, under Article 137 of the Schedule to the

Limitation Act.

42. Mr. Shivshankar pointed out that the Petition under Section 7 of

the IBC mentions the date of default as 30th September 2013, and 31st

December 2013 as the date of declaration of the account of the

Corporate Debtor as NPA. There was no averment in the petition of any

acknowledgement of debt which extended the period of limitation.

43. Mr. Shivshankar argued that, under Section 7(3) of the IBC, a

Financial creditor is required to furnish “record of the default recorded

with the information utility or record of evidence of default as may be

specified” and “ any other information as may be specified by the

Board”.

44. Mr. Shivshankar further argued that as per Section 7(4) of the IBC,

the NCLT was required to “ascertain the existence of default from the

records of an information utility or on the basis of other evidence

furnished by the financial creditor under sub-section (3)” within

“fourteen days of the receipt of the application”. Mr. Shivshankar

further argued that under Section 7(5) of the IBC, it was open to the

NCLT to allow seven days to the financial creditor to rectify any defect in

its application.

45. Mr. Shivshankar argued the Adjudicating Authority (NCLT), instead

of proceeding in the manner expressly stipulated in the IBC and without

adhering to the time lines stipulated therein, delayed the adjudication of

the question of admissibility of the petition under Section 7 of the IBC

by four months, and allowed the Appellant Bank to introduce documents

at a belated stage and these documents were considered by the NCLT

despite vehement objections by the Respondents.

46. Mr. Shivshankar further argued that on 2nd February 2019,

Corporate Debtor filed its preliminary objection to the petition under

Section 7 of the IBC, taking, a specific objection that the petition was

time barred since the date of default was admittedly stated to be 30th

September 2013. However, the NCLT after hearing arguments on 8th

February 2019, adjourned the matter with a direction on Counsel

appearing for the Appellant Bank, to file a gist of the case as also a copy

of the order passed by the Karnataka High Court, in a Writ Petition filed

by the Corporate Debtor, whereby the execution of the judgment and/or

order/decree of the DRT in O.A. 16 of 2015 had been stayed.

47. Mr. Shivshankar submitted that, taking advantage of the limited

liberty granted to the Appellant Bank by the Adjudicating Authority to

file a gist of the case and some orders/judgments, the Appellant Bank in

abuse of the process of the Tribunal, filed I.A. No. 131 of 2019,

introducing a whole new set of documents and setting up an entirely

new case for extension of limitation, on the ground of alleged

acknowledgement of debt.

48. Mr. Shivshankar argued that I.A. No.131 of 2019 was supported by

an affidavit. The documents listed above were introduced for the first

time. Even at this stage all the documents were not filed. Some of the

documents were never filed in the NCLT and were first brought on record

in the reply filed before NCLAT.

49. Mr. Shivshankar submitted that on 6th March 2019 the NCLT

passed an order, permitting learned counsel for the Appellant Bank to

file a set of documents in the Registry, after serving copies thereof on

the Respondents, and posted the case on 18th March 2019. Mr.

Shivshankar argued that the Respondents had specifically objected to

the belated filing of additional documents. However, the NCLT

completely ignored the objections raised on behalf of the Respondents

and passed its order dated 21st March 2019, admitting the petition

under Section 7 of the IBC.

50. Mr. Shivshankar submitted that the Respondents immediately

appealed to the NCLAT, inter alia contending that the Adjudicating

Authority had erred in permitting the Appellant Bank to substantially

improve upon its original petition filed under Section 7 of the IBC, by

filing additional documents and making out an entirely new case, after

the expiry of fourteen days specified in Section 7 for ascertainment of

default. Mr. Shivshankar submitted that it was in this background that

the NCLAT made the factual finding at Paragraph 4 of the impugned

order, that there was nothing on record to say that there was any

acknowledgement of debt, renewing or extending limitation.

51. Mr. Shivshankar argued that it is now well settled that the

Limitation Act applies to proceedings under the IBC. Mr. Shivshankar

also agreed that Section 18 of the Limitation Act would apply to

proceedings in the NCLT under Section 7 of the IBC. However, he

argued that, what falls for consideration in this appeal, is whether the

Appellant Bank had placed sufficient materials on record, with its

petition under Section 7 of the IBC, to attract Section 18 of the

Limitation Act.

52. Mr. Shivshankar finally argued that Section 62 of the IBC, under

which this appeal has been filed, is restricted to questions of law, unlike

an appeal to the NCLAT from an order of the Adjudicating Authority

(NCLT), which is an appeal both on facts and in law.

53. Mr. Shivshankar cited the judgment of this Court in Nazir

Mohamed v. J. Kamala & Ors.

, authored by one of us (Indira

Banerjee J.) where this Court held:-

“To be a question of law “involved in the case”, there must be first, a

foundation for it laid in the pleadings, and the question should

emerge from the sustainable findings of fact, arrived at by

Courts of facts, and it must be necessary to decide that question of law

for a just and proper decision of the case. (emphasis supplied)

54. There can be no dispute with the proposition that, to be a

question of law involved in the case, there must be first a foundation

laid in the pleadings, and the question should emerge from the

sustainable findings of fact, arrived at by Courts of facts, as reiterated

by this Court in Nazir Mohamad v. J. Kamala (supra), rendered in the

context of a second appeal under Section 100 of the Civil Procedure

Code.

6. 2020 SCC OnLine SC 676

55. Mr. Shivshankar next cited the judgment of this Court in Babulal

Vardharji Gurjar v. Veer Gurjar Aluminium Industries Private

Limited

, where this Court speaking through Maheshwari J., held:

“35. Apart from the above and even if it be assumed that the principles

relating to acknowledgment as per Section 18 of the Limitation Act are

applicable for extension of time for the purpose of the application

under Section 7 of the Code, in our view, neither the said provision and

principles come in operation in the present case nor do they enure to

the benefit of Respondent 2 for the fundamental reason that in the

application made before NCLT, Respondent 2 specifically stated the

date of default as “8-7-2011 being the date of NPA”. It remains

indisputable that neither has any other date of default been stated in

the application nor has any suggestion about any acknowledgment

been made. As noticed, even in Part V of the application, Respondent 2

was required to state the particulars of financial debt with documents

and evidence on record. In the variety of descriptions which could

have been given by the applicant in the said Part V of the

application and even in residuary Point 8 therein, nothing was

at all stated at any place about the so-called acknowledgment

or any other date of default.

35.1. Therefore, on the admitted fact situation of the present

case, where only the date of default as “8-7-2011” has been

stated for the purpose of maintaining the application under

Section 7 of the Code, and not even a foundation is laid in the

application for suggesting any acknowledgment or any other

date of default, in our view, the submissions sought to be

developed on behalf of Respondent 2 at the later stage cannot

be permitted. It remains trite that the question of limitation is

essentially a mixed question of law and facts and when a party seeks

application of any particular provision for extension or enlargement of

the period of limitation, the relevant facts are required to be pleaded

and requisite evidence is required to be adduced. Indisputably, in the

present case, Respondent 2 never came out with any pleading other

than stating the date of default as “8-7-2011” in the application. That

being the position, no case for extension of period of limitation is

available to be examined. In other words, even if Section 18 of the

Limitation Act and principles thereof were applicable, the same would

not apply to the application under consideration in the present case,

looking to the very averment regarding default therein and for want of

any other averment in regard to acknowledgment. In this view of the

matter, reliance on the decision in Mahabir Cold Storage [Mahabir Cold

Storage v. CIT, 1991 Supp (1) SCC 402] does not advance the cause of

Respondent 2.”

7 (2020) 15 SCC 1: 2020 SCC Online SC 647

56. Relying on the aforesaid judgment, Mr. Shivshankar contended

that the foundation for a plea of extension of limitation by virtue of

acknowledgment of debt should be in the pleadings and cannot be

developed at a later stage. Mr. Shivshankar emphatically argued that in

this case, there was no foundation in the pleadings for a case of

extension of limitation under Section 18 of the Limitation Act.

57. Relying on Babulal Vardharji Gurjar (supra) Mr. Shivshankar

argued that subsequent improvement in pleadings, at the fag-end of the

NCLT proceedings, ought not to have been countenanced. Mr.

Shivshankar further argued that, in any case, a proper construction of

the documents relied upon by the Appellant Bank would show that they

do not amount to acknowledgment under Section 18 of the Limitation

Act, which requires that any acknowledgment must be made “before

the expiration of the period of limitation for a suit or application”.

58. Mr. Shivshankar cited a Full Bench judgment of Allahabad High

Court in Munshi Lal v. Hira Lal & Anr.

, where the High Court held:-

“Now, it is clear that a document said to constitute an acknowledgment

has to be construed in the context in which it is given and that, where

its language is not clear in itself, the context may be examined to see

what it is to which the words refer. That is not to say that any

equivocation in an acknowledgment can be cured by ascertaining what

the probable intention of the acknowledgor was. That is quite a

different thing. But, where, after examining in the light of the context

what it was that the person giving the acknowledgment was actually

referring to the conclusion follows that it is an unequivocal

acknowledgment of a right, then that acknowledgment is sufficient to

satisfy section 19 of the Limitation Act.”

8 ILR 1947 All 11: AIR 1947 All 74(FB)

59. Mr. Shivshankar further pointed out that the Corporate Debtor’s

reply dated 5th January 2015 to the legal notice issued by the Appellant

Bank, the reply filed by the Corporate Debtor in O. S. No.16/2015 before

the DRT, Bengaluru, the OTS Proposal dated 3rd March 2017, OTS

Proposal dated 19th June 2017 and the Balance Sheets/Annual Reports of

the Corporate Debtor and a group company of the Corporate Debtor,

namely Kaveri Telecom Products Limited, for the financial years 2016-

17 and 2017-18 are irrelevant for the purpose of Section 18 of the

Limitation Act and many of those documents were in response to

suggestions made by the Appellant Bank seeking willingness to

restructure the account of the Respondents. Moreover, payment of

outstanding interest of Rs.111 lakhs was made in March 2014 that is

over four years before the date of filing of the petition under Section 7

of the IBC.

60. Mr. Shivshankar also argued that the letter dated 24th March 2014

written by the Corporate Debtor was not on record in the proceedings

before the Adjudicating Authority. The document was introduced for the

first time along with the reply filed by the Appellant

Bank before the NCLAT. This document cannot be considered as part of

the records at all.

61. Mr. Shivshankar finally submitted that the communications from

the Respondents were only to buy peace and end the litigation and

cannot, therefore, be construed as acknowledgment of debts for the

purpose of Section 18 of the Limitation Act.

62. Referring to the judgment of this Court in Gaurav

Hargovindbhai Dave (supra), Mr. Shivshankar argued that a proposal

for One Time Settlement cannot be construed as an acknowledgment of

debt for the purpose of Section 18 of the Limitation Act.

63. Mr. Shivshankar drew our attention to the fact that a review

petition was pending in this Court against the decision in Gaurav

Hargovindbhai Dave (supra). Admittedly, however, the effect of the

judgment has not been stayed. Until and unless the review application

is allowed and the judgment is reversed, it would operate as a

precedent.

64. Mr. Shivshankar finally cited Jignesh Shah (supra) where this

Court observed:-

“The aforesaid judgments correctly hold that a suit for recovery

based upon a cause of action that is within limitation cannot in

any manner impact the separate and independent remedy

of a winding-up proceeding. In law, when time begins to run,

it can only be extended in the manner provided in the Limitation

Act. For example, an acknowledgment of liability under Section

18 of the Limitation Act would certainly extend the limitation

period, but a suit for recovery, which is a separate and

independent proceeding distinct from the remedy of winding up

would, in no manner, impact the limitation within which the

winding-up proceeding is to be filed, by somehow keeping the

debt alive for the purpose of the winding-up proceeding.”

65. Mr. Shivshankar concluded his arguments with the submission

that the Petition under Section 7 of the IBC was not based on the

Recovery Certificate issued by the DRT or the judgment and order of the

DRT. Therefore, there could be no question of reckoning limitation from

the date of failure to make payment in terms of the Recovery

Certificate.

66. The IBC is an Act “to consolidate and amend the laws relating to

reorganisation and insolvency resolution of corporate persons,

partnership firms and individuals in a time-bound manner for

maximisation of value of assets of such persons, to promote

entrepreneurship, availability of credit and balance the interests of all

the stakeholders including alteration in the order of priority of payment

of Government dues and to establish an Insolvency and Bankruptcy

Board of India, and for matters connected therewith or incidental

thereto”.

67. The IBC aims at promoting, inter alia, investments and also

resolution of insolvency of Corporate persons. As per its Statement of

Objects and Reasons “the objective of the Insolvency and Bankruptcy

Code, 2015 is to consolidate and amend the laws relating to

reorganization and insolvency resolution of corporate persons,

partnership firms and individuals in a time bound manner for

maximization of value of assets of such persons, to promote

entrepreneurship, availability of credit and balance the interests of all

the stakeholders including alteration in the priority of payment of

government dues and to establish an Insolvency and Bankruptcy Fund,

and matters connected therewith or incidental thereto. An effective

legal framework for timely resolution of insolvency and bankruptcy

would support development of credit markets and encourage

entrepreneurship. It would also improve Ease of Doing Business, and

facilitate more investments leading to higher economic growth and

development”.

68. Under the scheme of the IBC, the Insolvency Resolution Process

begins, when a default takes place, in the sense that a debt becomes

due and is not paid. Some of the relevant provisions of the IBC, are set

out hereinbelow for convenience:

“3. Definitions.—In this Code, unless the context otherwise requires,—

(6) “claim” means—

(a) a right to payment, whether or not such right is reduced to judgment,

fixed, disputed, undisputed, legal, equitable, secured or unsecured;

(b) right to remedy for breach of contract under any law for the time being

in force, if such breach gives rise to a right to payment, whether or not

such right is reduced to judgment, fixed, matured, unmatured, disputed,

undisputed, secured or unsecured;

(7) “corporate person” means a company as defined in clause (20) of

Section 2 of the Companies Act, 2013 (18 of 2013), a limited liability

partnership, as defined in clause (n) of sub-section (1) of Section 2 of the

Limited Liability Partnership Act, 2008 (6 of 2009), or any other person

incorporated with limited liability under any law for the time being in force but

shall not include any financial service provider;

(8) “corporate debtor” means a corporate person who owes a debt to any

person;

…..

(10) “creditor” means any person to whom a debt is owed and includes a

financial creditor, an operational creditor, a secured creditor, an unsecured

creditor and a decree-holder;

(11) “debt” means a liability or obligation in respect of a claim which is due

from any person and includes a financial debt and operational debt;

(12) “default” means non-payment of debt when whole or any part or

instalment of the amount of debt has become due and payable and is

not 5[paid] by the debtor or the corporate debtor, as the case may be;

4. Application of this Part.—(1) This Part shall apply to matters relating to

the insolvency and liquidation of corporate debtors where the minimum

amount of the default is one lakh rupees:

Provided that the Central Government may, by notification, specify the

minimum amount of default of higher value which shall not be more than one

crore rupees.

5. Definitions.—In this Part, unless the context otherwise requires—

***

(7) “financial creditor” means any person to whom a financial debt is

owed and includes a person to whom such debt has been legally

assigned or transferred to;

(8) “financial debt” means a debt along with interest, if any, which is

disbursed against the consideration for the time value of money and

includes—

(a) money borrowed against the payment of interest;

(b) any amount raised by acceptance under any acceptance credit

facility or its dematerialised equivalent;

issue of bonds, notes, debentures, loan stock or any similar

instrument;

(d) the amount of any liability in respect of any lease or hire-purchase

contract which is deemed as a finance or capital lease under the

Indian Accounting Standards or such other accounting standards as

may be prescribed;

(e) receivables sold or discounted other than any receivables sold on

non-recourse basis;

(f) any amount raised under any other transaction, including any

forward sale or purchase agreement, having the commercial effect of

a borrowing;

(g) any derivative transaction entered into in connection with

protection against or benefit from fluctuation in any rate or price and

for calculating the value of any derivative transaction, only the market

value of such transaction shall be taken into account;

(h) any counter-indemnity obligation in respect of a guarantee,

indemnity, bond, documentary letter of credit or any other instrument

issued by a bank or financial institution;

(i) the amount of any liability in respect of any of the guarantee or

indemnity for any of the items referred to in sub-clauses (a) to (h) of

this clause;

6. Persons who may initiate corporate insolvency resolution process.

—Where any corporate debtor commits a default, a financial creditor, an

operational creditor or the corporate debtor itself may initiate corporate

insolvency resolution process in respect of such corporate debtor in the

manner as provided under this Chapter.

7. Initiation of corporate insolvency resolution process by financial

creditor.—(1) A financial creditor either by itself or jointly with 15[other

financial creditors, or any other person on behalf of the financial creditor, as

may be notified by the Central Government, may file an application for

initiating corporate insolvency resolution process against a corporate debtor

before the Adjudicating Authority when a default has occurred.

Provided that for the financial creditors, referred to in clauses (a) and (b) of

sub-section (6-A) of Section 21, an application for initiating corporate

insolvency resolution process against the corporate debtor shall be filed

jointly by not less than one hundred of such creditors in the same class or not

less than ten per cent. of the total number of such creditors in the same class,

whichever is less:

Provided further that for financial creditors who are allottees under a real

estate project, an application for initiating corporate insolvency resolution

process against the corporate debtor shall be filed jointly by not less than one

hundred of such allottees under the same real estate project or not less than

ten per cent. of the total number of such allottees under the same real estate

project, whichever is less:

Provided also that where an application for initiating the corporate insolvency

resolution process against a corporate debtor has been filed by a financial

creditor referred to in the first and second provisos and has not been admitted

by the Adjudicating Authority before the commencement of the Insolvency

and Bankruptcy Code (Amendment) Act, 2020, such application shall be

modified to comply with the requirements of the first or second proviso within

thirty days of the commencement of the said Act, failing which the application

shall be deemed to be withdrawn before its admission.]

Explanation.—For the purposes of this sub-section, a default includes a default

in respect of a financial debt owed not only to the applicant financial creditor

but to any other financial creditor of the corporate debtor.

(2) The financial creditor shall make an application under sub-section (1) in

such form and manner and accompanied with such fee as may be prescribed.

(3) The financial creditor shall, along with the application furnish—

(a) record of the default recorded with the information utility or such

other record or evidence of default as may be specified;

(b) the name of the resolution professional proposed to act as an interim

resolution professional; and

(4) The Adjudicating Authority shall, within fourteen days of the receipt of the

application under sub-section (2), ascertain the existence of a default from

the records of an information utility or on the basis of other evidence

furnished by the financial creditor under sub-section (3):

Provided that if the Adjudicating Authority has not ascertained the existence

of default and passed an order under sub-section (5) within such time, it shall

record its reasons in writing for the same.]

(5) Where the Adjudicating Authority is satisfied that—

(a) a default has occurred and the application under sub-section (2) is

complete, and there is no disciplinary proceedings pending against the

proposed resolution professional, it may, by order, admit such application; or

(b) default has not occurred or the application under sub-section (2) is

incomplete or any disciplinary proceeding is pending against the

proposed resolution professional, it may, by order, reject such

application:

Provided that the Adjudicating Authority shall, before rejecting the application

under clause (b) of sub-section (5), give a notice to the applicant to rectify the

defect in his application within seven days of receipt of such notice from the

Adjudicating Authority.

(6) The corporate insolvency resolution process shall commence from the date

of admission of the application under sub-section (5).

(7) The Adjudicating Authority shall communicate—

(a) the order under clause (a) of sub-section (5) to the financial creditor and the

corporate debtor;

(b) the order under clause (b) of sub-section (5) to the financial creditor,

within seven days of admission or rejection of such application, as the

case may be.

8. Insolvency resolution by operational creditor.—(1) An operational

creditor may, on the occurrence of a default, deliver a demand notice of

unpaid operational debtor copy of an invoice demanding payment of the

amount involved in the default to the corporate debtor in such form and

manner as may be prescribed.

(2) The corporate debtor shall, within a period of ten days of the receipt of the

demand notice or copy of the invoice mentioned in sub-section

(1) bring to the notice of the operational creditor—

(a) existence of a dispute, if any, or record of the pendency of the suit or

arbitration proceedings filed before the receipt of such notice or invoice in

relation to such dispute;

(b) the payment of unpaid operational debt—

(i) by sending an attested copy of the record of electronic transfer of the

unpaid amount from the bank account of the corporate debtor; or

(ii) by sending an attested copy of record that the operational creditor

has encashed a cheque issued by the corporate debtor.

Explanation.—For the purposes of this section, a “demand notice” means a

notice served by an operational creditor to the corporate debtor demanding

payment of the operational debt in respect of which the default has

occurred.”

12. Time-limit for completion of insolvency resolution process.—(1)

Subject to sub-section (2), the corporate insolvency resolution process shall be

completed within a period of one hundred and eighty days from the date of

admission of the application to initiate such process.

(2) The resolution professional shall file an application to the Adjudicating

Authority to extend the period of the corporate insolvency resolution process

beyond one hundred and eighty days, if instructed to do so by a resolution

passed at a meeting of the committee of creditors by a vote of sixty-six per

cent of the voting shares.

(3) On receipt of an application under sub-section (2), if the Adjudicating

Authority is satisfied that the subject-matter of the case is such that corporate

insolvency resolution process cannot be completed within one hundred and

eighty days, it may by order extend the duration of such process beyond one

hundred and eighty days by such further period as it thinks fit, but not

exceeding ninety days:

Provided that any extension of the period of corporate insolvency resolution

process under this section shall not be granted more than once:

Provided further that the corporate insolvency resolution process shall

mandatorily be completed within a period of three hundred and thirty days

from the insolvency commencement date, including any extension of the

period of corporate insolvency resolution process granted under this section

and the time taken in legal proceedings in relation to such resolution process

of the corporate debtor:

Provided also that where the insolvency resolution process of a corporate

debtor is pending and has not been completed within the period referred to in

the second proviso, such resolution process shall be completed within a period

of ninety days from the date of commencement of the Insolvency and

Bankruptcy Code (Amendment) Act, 2019.

12-A. Withdrawal of application admitted under Section 7, 9 or 10.—

The Adjudicating Authority may allow the withdrawal of application admitted

under Section 7 or Section 9 or Section 10, on an application made by the

applicant with the approval of ninety per cent. voting share of the committee

of creditors, in such manner as may be specified.

13. Declaration of moratorium and public announcement.—(1) The

Adjudicating Authority, after admission of the application under Section 7 or

Section 9 or Section 10, shall, by an order—

(a) declare a moratorium for the purposes referred to in Section 14;

(b) cause a public announcement of the initiation of corporate insolvency

resolution process and call for the submission of claims under Section

15; and

in Section 16.

(2) The public announcement referred to in clause (b) of sub-section (1) shall

be made immediately after the appointment of the interim resolution

professional.

14. Moratorium.—(1) Subject to provisions of sub-sections (2) and (3), on

the insolvency commencement date, the Adjudicating Authority shall by order

declare moratorium for prohibiting all of the following, namely—

(a) the institution of suits or continuation of pending suits or

proceedings against the corporate debtor including execution of any

judgment, decree or order in any court of law, tribunal, arbitration panel

or other authority;

(b) transferring, encumbering, alienating or disposing of by the

corporate debtor any of its assets or any legal right or beneficial interest

therein;

created by the corporate debtor in respect of its property including any

action under the Securitisation and Reconstruction of Financial Assets

and Enforcement of Security Interest Act, 2002 (54 of 2002);

(d) the recovery of any property by an owner or lessor where such

property is occupied by or in the possession of the corporate debtor.

Explanation.—For the purposes of this sub-section, it is hereby clarified that

notwithstanding anything contained in any other law for the time being in

force, a license, permit, registration, quota, concession, clearances or a

similar grant or right given by the Central Government, State Government,

local authority, sectoral regulator or any other authority constituted under any

other law for the time being in force, shall not be suspended or terminated on

the grounds of insolvency, subject to the condition that there is no default in

payment of current dues arising for the use or continuation of the license,

permit, registration, quota, concession, clearances or a similar grant or right

during the moratorium period.]

(2) The supply of essential goods or services to the corporate debtor as may

be specified shall not be terminated or suspended or interrupted during

moratorium period.

(2-A) Where the interim resolution professional or resolution professional, as the

case may be, considers the supply of goods or services critical to protect and

preserve the value of the corporate debtor and manage the operations of such

corporate debtor as a going concern, then the supply of such goods or services

shall not be terminated, suspended or interrupted during the period of

moratorium, except where such corporate debtor has not paid dues arising from

such supply during the moratorium period or in such circumstances as may be

specified.

(3) The provisions of sub-section (1) shall not apply to—

(a) such transactions, agreements or other arrangements as may be notified

by the Central Government in consultation with any financial sector

regulator or any other authority;]

(b) a surety in a contract of guarantee to a corporate debtor.]

(4) The order of moratorium shall have effect from the date of such order till

the completion of the corporate insolvency resolution process:

Provided that where at any time during the corporate insolvency resolution

process period, if the Adjudicating Authority approves the resolution plan

under sub-section (1) of Section 31 or passes an order for liquidation of

corporate debtor under Section 33, the moratorium shall cease to have effect

from the date of such approval or liquidation order, as the case may be.

15. Public announcement of corporate insolvency resolution process.

—(1) The public announcement of the corporate insolvency resolution process

under the order referred to in Section 13 shall contain the following

information, namely:—

(a) name and address of the corporate debtor under the corporate

insolvency resolution process;

(b) name of the authority with which the corporate debtor is incorporated

or registered;

(d) details of the interim resolution professional who shall be vested with

the management of the corporate debtor and be responsible for

receiving claims;

(e) penalties for false or misleading claims; and

(f) the date on which the corporate insolvency resolution process shall

close, which shall be the one hundred and eightieth day from the date of

the admission of the application under Sections 7, 9 or Section 10, as the

case may be.

(2) The public announcement under this section shall be made in such

manner as may be specified.

16. Appointment and tenure of interim resolution professional.—(1) The

Adjudicating Authority shall appoint an interim resolution professional on the

insolvency commencement date.

(2) Where the application for corporate insolvency resolution process is made

by a financial creditor or the corporate debtor, as the case may be, the

resolution professional, as proposed respectively in the application under

Section 7 or Section 10, shall be appointed as the interim resolution

professional, if no disciplinary proceedings are pending against him.

(3) Where the application for corporate insolvency resolution process is made

by an operational creditor and—

(a) no proposal for an interim resolution professional is made, the

Adjudicating Authority shall make a reference to the Board for the

recommendation of an insolvency professional who may act as an interim

resolution professional;

(b) a proposal for an interim resolution professional is made under subsection (4) of Section 9, the resolution professional as proposed, shall be

appointed as the interim resolution professional, if no disciplinary

proceedings are pending against him.

(4) The Board shall, within ten days of the receipt of a reference from the

Adjudicating Authority under sub-section (3), recommend the name of an

insolvency professional to the Adjudicating Authority against whom no

disciplinary proceedings are pending.

(5) The term of the interim resolution professional shall continue till the date

of appointment of the resolution professional under Section 22.

17. Management of affairs of corporate debtor by interim resolution

professional.—(1) From the date of appointment of the interim resolution

professional,—

(a) the management of the affairs of the corporate debtor shall vest in

the interim resolution professional;

(b) the powers of the board of directors or the partners of the corporate

debtor, as the case may be, shall stand suspended and be exercised by

the interim resolution professional;

interim resolution professional and provide access to such documents

and records of the corporate debtor as may be required by the interim

resolution professional;

(d) the financial institutions maintaining accounts of the corporate

debtor shall act on the instructions of the interim resolution professional

in relation to such accounts and furnish all information relating to the

corporate debtor available with them to the interim resolution

professional.

18. Duties of interim resolution professional.—(1) The interim resolution

professional shall perform the following duties, namely—

(a) collect all information relating to the assets, finances and operations of the

corporate debtor for determining the financial position of the corporate

debtor, including information relating to—

(i) business operations for the previous two years;

(ii) financial and operational payments for the previous two years;

(iii) list of assets and liabilities as on the initiation date; and

(iv) such other matters as may be specified;

(b) receive and collate all the claims submitted by creditors to him,

pursuant to the public announcement made under Sections 13 and 15;

(d) monitor the assets of the corporate debtor and manage its operations

until a resolution professional is appointed by the committee of creditors;

(e) file information collected with the information utility, if necessary;

and

(f) take control and custody of any asset over which the corporate debtor

has ownership rights as recorded in the balance sheet of the corporate

debtor, or with information utility or the depository of securities or any

other registry that records the ownership of assets including—

(i) assets over which the corporate debtor has ownership rights which

may be located in a foreign country;

(ii) assets that may or may not be in possession of the corporate

debtor;

(iii) tangible assets, whether movable or immovable;

(iv) intangible assets including intellectual property;

(v) securities including shares held in any subsidiary of the corporate

debtor, financial instruments, insurance policies;

(vi) assets subject to the determination of ownership by a court or

authority;

(g) to perform such other duties as may be specified by the Board.

Explanation.—For the purposes of this section, the term “assets” shall not

include the following, namely—

(a) assets owned by a third party in possession of the corporate debtor

held under trust or under contractual arrangements including bailment;

(b) assets of any Indian or foreign subsidiary of the corporate debtor; and

consultation with any financial sector regulator.

20. Management of operations of corporate debtor as going concern.

—(1) The interim resolution professional shall make every endeavour to

protect and preserve the value of the property of the corporate debtor and

manage the operations of the corporate debtor as a going concern.

21. Committee of creditors.—(1) The interim resolution professional shall

after collation of all claims received against the corporate debtor and

determination of the financial position of the corporate debtor, constitute a

committee of creditors.

(2) The committee of creditors shall comprise all financial creditors of the

corporate debtor:

Provided that a financial creditor or the authorised representative of the

financial creditor referred to in sub-section (6) or sub-section (6-A) or subsection (5) of Section 24, if it is a related party of the corporate debtor, shall

not have any right of representation, participation or voting in a meeting of

the committee of creditors:

Provided further that the first proviso shall not apply to a financial creditor,

regulated by a financial sector regulator, if it is a related party of the

corporate debtor solely on account of conversion or substitution of debt into

equity shares or instruments convertible into equity shares or completion of

such transactions as may be prescribed, prior to the insolvency

commencement date.

22. Appointment of resolution professional.—(1) The first meeting of the

committee of creditors shall be held within seven days of the constitution of

the committee of creditors.

(2) The committee of creditors, may, in the first meeting, by a majority vote of

not less than sixty-six] per cent of the voting share of the financial creditors,

either resolve to appoint the interim resolution professional as a resolution

professional or to replace the interim resolution professional by another

resolution professional.

(3) Where the committee of creditors resolves under sub-section (2)—

(a) to continue the interim resolution professional as resolution

professional subject to a written consent from the interim resolution

professional in the specified form], it shall communicate its decision to

the interim resolution professional, the corporate debtor and the

Adjudicating Authority; or

(b) to replace the interim resolution professional, it shall file an

application before the Adjudicating Authority for the appointment of the

proposed resolution professional along with a written consent from the

proposed resolution professional in the specified form.

(4) The Adjudicating Authority shall forward the name of the resolution

professional proposed under clause (b) of sub-section (3) to the Board for its

confirmation and shall make such appointment after confirmation by the

Board.

(5) Where the Board does not confirm the name of the proposed resolution

professional within ten days of the receipt of the name of the proposed

resolution professional, the Adjudicating Authority shall, by order, direct the

interim resolution professional to continue to function as the resolution

professional until such time as the Board confirms the appointment of the

proposed resolution professional.

23. Resolution professional to conduct corporate insolvency

resolution process.—(1) Subject to Section 27, the resolution professional

shall conduct the entire corporate insolvency resolution process and manage

the operations of the corporate debtor during the corporate insolvency

resolution process period:

Provided that the resolution professional shall continue to manage the

operations of the corporate debtor after the expiry of the corporate insolvency

resolution process period, until an order approving the resolution plan under

sub-section (1) of Section 31 or appointing a liquidator under Section 34 is

passed by the Adjudicating Authority.

(2) The resolution professional shall exercise powers and perform duties as

are vested or conferred on the interim resolution professional under this

Chapter.

(3) In case of any appointment of a resolution professional under sub-sections

(4) of Section 22, the interim resolution professional shall provide all the

information, documents and records pertaining to the corporate debtor in his

possession and knowledge to the resolution professional.

25. Duties of resolution professional.—(1) It shall be the duty of the

resolution professional to preserve and protect the assets of the corporate

debtor, including the continued business operations of the corporate debtor.

(2) For the purposes of sub-section (1), the resolution professional shall

undertake the following actions, namely—

(a) take immediate custody and control of all the assets of the corporate

debtor, including the business records of the corporate debtor;

(b) represent and act on behalf of the corporate debtor with third parties,

exercise rights for the benefit of the corporate debtor in judicial, quasijudicial or arbitration proceedings;

creditors under Section 28;

25-A. Rights and duties of authorised representative of financial

creditors.—(1) The authorised representative under sub-section (6) or subsection (6-A) of Section 21 or sub-section (5) of Section 24 shall have the right

to participate and vote in meetings of the committee of creditors on behalf of

the financial creditor he represents in accordance with the prior voting

instructions of such creditors obtained through physical or electronic means.

(2) It shall be the duty of the authorised representative to circulate the

agenda and minutes of the meeting of the committee of creditors to the

financial creditor he represents.

(3) The authorised representative shall not act against the interest of the

financial creditor he represents and shall always act in accordance with their

prior instructions:

Provided that if the authorised representative represents several financial

creditors, then he shall cast his vote in respect of each financial creditor in

accordance with instructions received from each financial creditor, to the

extent of his voting share:

Provided further that if any financial creditor does not give prior instructions

through physical or electronic means, the authorised representative shall

abstain from voting on behalf of such creditor.

(3-A) Notwithstanding anything to the contrary contained in sub-section (3),

the authorised representative under sub-section (6-A) of Section 21 shall cast

his vote on behalf of all the financial creditors he represents in accordance

with the decision taken by a vote of more than fifty per cent. of the voting

share of the financial creditors he represents, who have cast their vote:

Provided that for a vote to be cast in respect of an application under Section

12-A, the authorised representative shall cast his vote in accordance with the

provisions of sub-section (3).

(4) The authorised representative shall file with the committee of creditors

any instructions received by way of physical or electronic means, from the

financial creditor he represents, for voting in accordance therewith, to ensure

that the appropriate voting instructions of the financial creditor he represents

is correctly recorded by the interim resolution professional or resolution

professional, as the case may be.

Explanation.—For the purposes of this section, the “electronic means” shall

be such as may be specified.]

27. Replacement of resolution professional by committee of

creditors.—(1) Where, at any time during the corporate insolvency resolution

process, the committee of creditors is of the opinion that a resolution

professional appointed under Section 22 is required to be replaced, it may

replace him with another resolution professional in the manner provided

under this section.

(2) The committee of creditors may, at a meeting, by a vote of sixty-six per

cent. of voting shares, resolve to replace the resolution professional appointed

under Section 22 with another resolution professional, subject to a written

consent from the proposed resolution professional in the specified form.

(3) The committee of creditors shall forward the name of the insolvency

professional proposed by them to the Adjudicating Authority.

(4) The Adjudicating Authority shall forward the name of the proposed

resolution professional to the Board for its confirmation and a resolution

professional shall be appointed in the same manner as laid down in Section

16.

(5) Where any disciplinary proceedings are pending against the proposed

resolution professional under sub-section (3), the resolution professional

appointed under Section 22 shall continue till the appointment of another

resolution professional under this section.

30. Submission of resolution plan.—(1) A resolution applicant may submit

a resolution plan along with an affidavit stating that he is eligible under

Section 29-A to the resolution professional prepared on the basis of the

information memorandum.

(2) The resolution professional shall examine each resolution plan received by

him to confirm that each resolution plan—

(a) provides for the payment of insolvency resolution process costs in a

manner specified by the Board in priority to the payment of other debts

of the corporate debtor;

(b) provides for the payment of debts of operational creditors in such

manner as may be specified by the Board which shall not be less than—

(i) the amount to be paid to such creditors in the event of a liquidation of

the corporate debtor under Section 53; or

(ii) the amount that would have been paid to such creditors, if the

amount to be distributed under the resolution plan had been distributed

in accordance with the order of priority in sub-section (1) of Section 53,

whichever is higher, and provides for the payment of debts of financial

creditors, who do not vote in favour of the resolution plan, in such

manner as may be specified by the Board, which shall not be less than

the amount to be paid to such creditors in accordance with sub-section

(1) of Section 53 in the event of a liquidation of the corporate debtor.

Explanation 1.—For the removal of doubts, it is hereby clarified that a

distribution in accordance with the provisions of this clause shall be fair

and equitable to such creditors.

Explanation 2.—For the purposes of this clause, it is hereby declared

that on and from the date of commencement of the Insolvency and

Bankruptcy Code (Amendment) Act, 2019, the provisions of this clause

shall also apply to the corporate insolvency resolution process of a

corporate debtor—

(i) where a resolution plan has not been approved or rejected by the

Adjudicating Authority;

(ii) where an appeal has been preferred under Section 61 or Section 62

or such an appeal is not time barred under any provision of law for the

time being in force; or

(iii) where a legal proceeding has been initiated in any court against the

decision of the Adjudicating Authority in respect of a resolution plan;]

after approval of the resolution plan;

(d) the implementation and supervision of the resolution plan;

(e) does not contravene any of the provisions of the law for the time

being in force;

(f) conforms to such other requirements as may be specified by the

Board.

Explanation.—For the purposes of clause (e), if any approval of shareholders is

required under the Companies Act, 2013 (18 of 2013) or any other law for the

time being in force for the implementation of actions under the resolution plan,

such approval shall be deemed to have been given and it shall not be a

contravention of that Act or law.

(3) The resolution professional shall present to the committee of

creditors for its approval such resolution plans which confirm the

conditions referred to in sub-section (2).

(4) The committee of creditors may approve a resolution plan by a vote of not

less than sixty-six per cent of voting share of the financial creditors, after

considering its feasibility and viability, the manner of distribution proposed,

which may take into account the order of priority amongst creditors as laid

down in sub-section (1) of Section 53,including the priority and value of the

security interest of a secured creditor and such other requirements as may be

specified by the Board:

Provided that the committee of creditors shall not approve a resolution plan,

submitted before the commencement of the Insolvency and Bankruptcy Code

(Amendment) Ordinance, 2017, where the resolution applicant is ineligible

under Section 29-A and may require the resolution professional to invite a

fresh resolution plan where no other resolution plan is available with it:

Provided further that where the resolution applicant referred to in the first

proviso is ineligible under clause (c) of Section 29-A, the resolution applicant

shall be allowed by the committee of creditors such period, not exceeding

thirty days, to make payment of overdue amounts in accordance with the

proviso to clause (c) of Section 29-A:

Provided also that nothing in the second proviso shall be construed as

extension of period for the purposes of the proviso to sub-section (3) of

Section 12, and the corporate insolvency resolution process shall be

completed within the period specified in that sub-section.]

Provided also that the eligibility criteria in Section 29-A as amended by the

Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018 (Ord. 6 of

2018) shall apply to the resolution applicant who has not submitted resolution

plan as on the date of commencement of the Insolvency and Bankruptcy Code

(Amendment) Ordinance, 2018.

(5) The resolution applicant may attend the meeting of the committee of

creditors in which the resolution plan of the applicant is considered:

Provided that the resolution applicant shall not have a right to vote at the

meeting of the committee of creditors unless such resolution applicant is also

a financial creditor.

(6) The resolution professional shall submit the resolution plan as approved by

the committee of creditors to the Adjudicating Authority.

31. Approval of resolution plan.—(1) If the Adjudicating Authority is

satisfied that the resolution plan as approved by the committee of creditors

under sub-section (4) of Section 30 meets the requirements as referred to in

sub-section (2) of Section 30, it shall by order approve the resolution plan

which shall be binding on the corporate debtor and its employees, members,

creditors, including the Central Government, any State Government or any

local authority to whom a debt in respect of the payment of dues arising

under any law for the time being in force, such as authorities to whom

statutory dues are owed, guarantors and other stakeholders involved in the

resolution plan:

Provided that the Adjudicating Authority shall, before passing an order for

approval of resolution plan under this sub-section, satisfy that the resolution

plan has provisions for its effective implementation.

(2) Where the Adjudicating Authority is satisfied that the resolution plan does

not confirm to the requirements referred to in sub-section (1), it may, by an

order, reject the resolution plan.

(3) After the order of approval under sub-section (1),—

(a) the moratorium order passed by the Adjudicating Authority under

Section 14 shall cease to have effect; and

(b) the resolution professional shall forward all records relating to the

conduct of the corporate insolvency resolution process and the resolution

plan to the Board to be recorded on its database.

(4) The resolution applicant shall, pursuant to the resolution plan approved

under sub-section (1), obtain the necessary approval required under any law for

the time being in force within a period of one year from the date of approval of

the resolution plan by the Adjudicating Authority under sub-section (1) or within

such period as provided for in such law, whichever is later:

Provided that where the resolution plan contains a provision for combination,

as referred to in Section 5 of the Competition Act, 2002 (12 of 2003), the

resolution applicant shall obtain the approval of the Competition Commission

of India under that Act prior to the approval of such resolution plan by the

committee of creditors.]

33. Initiation of liquidation.—(1) Where the Adjudicating Authority,—

(a) before the expiry of the insolvency resolution process period or the

maximum period permitted for completion of the corporate insolvency

resolution process under Section 12 or the fast track corporate

insolvency resolution process under Section 56, as the case may be,

does not receive a resolution plan under sub-section (6) of Section 30; or

(b) rejects the resolution plan under Section 31 for the non-compliance

of the requirements specified therein,

it shall—

(i) pass an order requiring the corporate debtor to be liquidated in the

manner as laid down in this Chapter;

(ii) issue a public announcement stating that the corporate debtor is in

liquidation; and

(iii) require such order to be sent to the authority with which the

corporate debtor is registered.

(2) Where the resolution professional, at any time during the corporate

insolvency resolution process but before confirmation of resolution plan,

intimates the Adjudicating Authority of the decision of the committee of

creditors approved by not less than sixty-six per cent of the voting share] to

liquidate the corporate debtor, the Adjudicating Authority shall pass a

liquidation order as referred to in sub-clauses (i), (ii) and (iii) of clause (b) of

sub-section (1).

Explanation.—For the purposes of this sub-section, it is hereby declared that

the committee of creditors may take the decision to liquidate the corporate

debtor, any time after its constitution under sub-section (1) of Section 21 and

before the confirmation of the resolution plan, including at any time before the

preparation of the information memorandum.

(3) Where the resolution plan approved by the Adjudicating Authority is

contravened by the concerned corporate debtor, any person other than the

corporate debtor, whose interests are prejudicially affected by such

contravention, may make an application to the Adjudicating Authority for a

liquidation order as referred to in sub-clauses (i), (ii) and (iii) of clause (b) of

sub-section (1).

(4) On receipt of an application under sub-section (3), if the Adjudicating

Authority determines that the corporate debtor has contravened the

provisions of the resolution plan, it shall pass a liquidation order as referred to

in sub-clauses (i), (ii) and (iii) of clause (b) of sub-section (1).

(5) Subject to Section 52, when a liquidation order has been passed, no suit or

other legal proceeding shall be instituted by or against the corporate debtor:

Provided that a suit or other legal proceeding may be instituted by the

liquidator, on behalf of the corporate debtor, with the prior approval of the

Adjudicating Authority…”.

69. The scheme of the IBC is to ensure that when a default takes

place, in the sense that a debt becomes due and is not paid, the

Corporate Insolvency Resolution Process begins. Where any corporate

debtor commits default, a financial creditor, an operational creditor or

the corporate debtor itself may initiate Corporate Insolvency Resolution

Process in respect of such corporate debtor in the manner as provided

in Chapter II of the IBC.

70. The provisions of the IBC are designed to ensure that the business

and/or commercial activities of the Corporate Debtor are continued by a

Resolution Professional, post imposition of a moratorium, which would

give the Corporate Debtor some reprieve from coercive litigation, which

could drain the Corporate Debtor of its financial resources. This is to

enable the Corporate Debtor to improve its financial health and at the

same time repay the dues of its creditors.

71. Under Section 7(2) of the IBC, read with the Statutory 2016

Adjudicating Authority Rules, made in exercise of powers conferred,

inter alia, by clauses (c) (d) (e) and (f) of sub-section (1) of Section 239

read with Sections 7, 8, 9 and 10 of the IBC, a financial creditor is

required to apply in the prescribed Form 1 for initiation of the Corporate

Insolvency Resolution Process, against a Corporate Debtor under

Section 7 of the IBC, accompanied with documents and records required

therein, and as specified in the Insolvency and Bankruptcy Board of

India (Insolvency Resolution Process for Corporate Persons) Regulations,

2016, hereinafter referred to as the 2016 IB Board of India Regulations.

72. Statutory Form 1 under Rule 4(1) of the 2016 Adjudicating

Authority Rules comprises Parts I to V, of which Part I pertains to

particulars of the Applicant, Part II pertains to particulars of the

Corporate Debtor and Part III pertains to particulars of the proposed

Interim Resolution Professional. Parts IV and V which require particulars

of Financial Debt with Documents, Records and Evidence of default, is

extracted hereinbelow:

PART IV

PARTICULARS OF FINANCIAL DEBT

1 TOTAL AMOUNT OF DEBT GRANTED DATE(S) OF

DISBURSEMENT

2 AMOUNT CLAIMED TO BE IN DEFAULT AND THE

DATE ON WHICH THE DEFAULT OCCURRED

(ATTACH THE WORKINGS FOR COMPUTATION OF

AMOUNT AND DAYS OF DEFAULT IN TABULAR

FORM)

PART V

PARTICULARS OF FINANCIAL DEBT [DOCUMENTS, RECORDS AND EVIDENCE OF

DEFAULT]

1 PARTICULARS OF SECURITY HELD, IF ANY, THE DATE OF ITS CREATION, ITS

ESTIMATED VALUE AS PER THE CREDITOR.

ATTACH A COPY OF A CERTIFICATE OF REGISTRATION OF CHARGE ISSUED BY THE

REGISTRAR OF COMPANIES (IF THE CORPORATE DEBTOR IS A COMPANY)

2 PARTICULARS OF AN ORDER OF A COURT, TRIBUNAL OR ARBITRAL PANEL

ADJUDICATING ON THE DEFAULT, IF ANY

(ATTACH A COPY OF THE ORDER)

3 RECORD OF DEFAULT WITH THE INFORMATION UTILITY, IF ANY (ATTACH A COPY OF

SUCH RECORD)

4 DETAILS OF SUCCESSION CERTIFICATE, OR PROBATE OF A WILL, OR LETTER OF

ADMINISTRATION, OR COURT DECREE (AS MAY BE APPLICABLE), UNDER THE INDIAN

SUCCESSION ACT, 1925 (10 OF 1925) (ATTACH A COPY)

5 THE LATEST AND COMPLETE COPY OF THE FINANCIAL CONTRACT REFLECTING ALL

AMENDMENTS AND WAIVERS TO DATE

(ATTACH A COPY)

6 A RECORD OF DEFAULT AS AVAILABLE WITH ANY CREDIT INFORMATION COMPANY

(ATTACH A COPY)

7 COPIES OF ENTRIES IN A BANKERS BOOK IN ACCORDANCE WITH THE BANKERS

BOOKS EVIDENCE ACT, 1891 (18 OF 1891)

(ATTACH A COPY)

8 LIST OF OTHER DOCUMENTS ATTACHED TO THIS APPLICATION IN ORDER TO PROVE

THE EXISTENCE OF FINANCIAL, DEBT, THE AMOUNT AND DATE OF DEFAULT

73. Since a Financial Creditor is required to apply under Section 7 of

the IBC, in statutory Form 1, the Financial Creditor can only fill in

particulars as specified in the various columns of the Form. There is no

scope for elaborate pleadings. An application to the Adjudicating

Authority (NCLT) under Section 7 of the IBC in the prescribed form,

cannot therefore, be compared with the plaint in a suit. Such

application cannot be judged by the same standards, as a plaint in a

suit, or any other pleadings in a Court of law.

74. Section 7(3) requires a financial creditor making an application

under Section 7(1) to furnish records of the default recorded with the

information utility or such other record or evidence of default as may be

specified; the name of the resolution professional proposed to act as an

Interim Resolution Professional and any other information as may be

specified by the Insolvency and Bankruptcy Board of India.

75. Section 7(4) of the IBC casts an obligation on the Adjudicating

Authority to ascertain the existence of a default from the records of an

information utility or on the basis of other evidence furnished by the

financial creditor within fourteen days of the receipt of the application

under Section 7. As per the proviso to Section 7(4) of the IBC, inserted

by amendment, by Act 26 of 2019, if the Adjudicating Authority has not

ascertained the existence of default and passed an order within the

stipulated period of time of fourteen days, it shall record its reasons for

the same in writing. The application does not lapse for non-compliance

of the time schedule. Nor is the Adjudicating Authority obliged to

dismiss the application. On the other hand, the application cannot be

dismissed, without compliance with the requisites of the Proviso to

Section 7(5) of the IBC.

76. Section 7(5)(a) provides that when the Adjudicating Authority is

satisfied that a default has occurred, and the application under subsection (2) of Section 7 is complete and there is no disciplinary

proceeding pending against the proposed resolution professional, it may

by order admit such application. As per Section 7(5)(b), if the

Adjudicating Authority is satisfied that default has not occurred or the

application under sub-Section (2) of Section 7 is incomplete or any

disciplinary proceeding is pending against the proposed resolution

professional, it may, by order, reject such application, provided that the

Adjudicating Authority shall, before rejecting the application under subsection (b) of Section 5, give notice to the applicant, to rectify the

defects in his application, within 7 days of receipt of such notice from

the Adjudicating Authority.

77. The Corporate Insolvency Resolution Process commences on the

date of admission of the application under sub-section (5) of Section 7

of the IBC. Section 7(7) casts an obligation on the Adjudicating

Authority to communicate an order under clause (a) of sub-section (5) of

Section 7 to the financial creditor and the corporate debtor and to

communicate an order under clause (b) of sub-section (5) of Section 7

to the financial creditor within seven days of admission or rejection of

such application, as the case may be. Sections 8 and 9 of IBC pertain to

Insolvency Resolution by an operational creditor and are not attracted in

the facts and circumstances of this case. Section 10 pertains to

initiation of Corporate Insolvency Resolution Process by the Corporate

Debtor itself, and is also not attracted in the facts and circumstances of

the case.

78. Section 12(1) of the IBC requires the Corporate Insolvency Process

to be completed within a period of 180 days from the date of admission

of the application to initiate such process. The period of 180 days is not

extendable more than once.

79. The IBC is not just another statute for recovery of debts. Nor is it

a statute which merely prescribes the modalities of liquidation of a

Corporate body, unable to pay its debts. It is essentially a statute which

works towards the revival of a Corporate body, unable to pay its debts,

by appointment of a Resolution Professional.

80. In Innoventive Industries Ltd vs. ICICI Bank

, this Court,

speaking through Nariman, J. extracted excerpts from the Report of the

Bankruptcy Law Reforms Committee of November, 2015 some of which

are reproduced hereinbelow:-

“…When a firm (referred to as the corporate debtor in the draft law)

defaults, the question arises about what is to be done. Many

possibilities can be envisioned. One possibility is to take the firm into

9. (2018) 1 SCC 407

liquidation. Another possibility is to negotiate a debt restructuring,

where the creditors accept a reduction of debt on an NPV basis, and

hope that the negotiated value exceeds the liquidation value. Another

possibility is to sell the firm as a going concern and use the proceeds to

pay creditors. Many hybrid structures of these broad categories can be

envisioned.

***

Speed is of essence

Speed is of essence for the working of the bankruptcy code, for two

reasons. First, while the “calm period” can help keep an organisation afloat,

without the full clarity of ownership and control, significant decisions

cannot be made. Without effective leadership, the firm will tend to atrophy

and fail. The longer the delay, the more likely it is that liquidation will be

the only answer. Second, the liquidation value tends to go down with time

as many assets suffer from a high economic rate of depreciation.

From the viewpoint of creditors, a good realisation can generally be

obtained if the firm is sold as a going concern. Hence, when delays induce

liquidation, there is value destruction. Further, even in liquidation, the

realisation is lower when there are delays. Hence, delays cause value

destruction. Thus, achieving a high recovery rate is primarily about

identifying and combating the sources of delay.

***

Control of a company is not divine right.—When a firm defaults on its

debt, control of the company should shift to the creditors. In the absence of

swift and decisive mechanisms for achieving this, management teams and

shareholders retain control after default. Bankruptcy law must address this.

Objectives…”

81. In Innoventive Industries Ltd vs. ICICI Bank (supra) this Court

noted the objectives set by the Bankruptcy Law Reforms Committee in

recommending the IBC,

“The Committee set the following as objectives desired from

implementing a new Code to resolve insolvency and bankruptcy:

(1) Low time to resolution.

(2) Low loss in recovery.

(3) Higher levels of debt financing across a wide variety of debt

instruments.

………

Principles driving the design

The Committee chose the following principles to design the new

insolvency and bankruptcy resolution framework:

I. The Code will facilitate the assessment of viability of the enterprise

at a very early stage.

(1) The law must explicitly state that the viability of the enterprise is a

matter of business, and that matters of business can only be

negotiated between creditors and debtor. While viability is assessed as

a negotiation between creditors and debtor, the final decision has to be

an agreement among creditors who are the financiers willing to bear

the loss in the insolvency.

(2) The legislature and the courts must control the process of

resolution, but not be burdened to make business decisions.

(3) The law must set up a calm period for insolvency resolution where

the debtor can negotiate in the assessment of viability without fear of

debt recovery enforcement by creditors.

(4) The law must appoint a resolution professional as the manager of

the resolution period, so that the creditors can negotiate the

assessment of viability with the confidence that the debtors will not

take any action to erode the value of the enterprise. The professional

will have the power and responsibility to monitor and manage the

operations and assets of the enterprise. The professional will manage

the resolution process of negotiation to ensure balance of power

between the creditors and debtor, and protect the rights of all

creditors. The professional will ensure the reduction of asymmetry of

information between creditors and debtor in the resolution process.

II. The Code will enable symmetry of information between creditors and

debtors.

(5) The law must ensure that information that is essential for the

insolvency and the bankruptcy resolution process is created and

available when it is required.

(6) The law must ensure that access to this information is made available

to all creditors to the enterprise, either directly or through the regulated

professional.

(7) The law must enable access to this information to third parties who

can participate in the resolution process, through the regulated

professional.

III. The Code will ensure a time-bound process to better preserve

economic value.

(8) The law must ensure that time value of money is preserved, and that

delaying tactics in these negotiations will not extend the time set for

negotiations at the start.

IV. The Code will ensure a collective process.

(9) The law must ensure that all key stakeholders will participate to

collectively assess viability. The law must ensure that all creditors who

have the capability and the willingness to restructure their liabilities must

be part of the negotiation process. The liabilities of all creditors who are

not part of the negotiation process must also be met in any negotiated

solution.

V. The Code will respect the rights of all creditors equally.

(10) The law must be impartial to the type of creditor in counting their

weight in the vote on the final solution in resolving insolvency.

VI. The Code must ensure that, when the negotiations fail to establish

viability, the outcome of bankruptcy must be binding.

(11) The law must order the liquidation of an enterprise which has been

found unviable. This outcome of the negotiations should be protected

against all appeals other than for very exceptional cases.

VII. The Code must ensure clarity of priority, and that the rights of all

stakeholders are upheld in resolving bankruptcy.

(12) The law must clearly lay out the priority of distributions in

bankruptcy to all stakeholders. The priority must be designed so as to

incentivise all stakeholders to participate in the cycle of building

enterprises with confidence.

(13) While the law must incentivise collective action in resolving

bankruptcy, there must be a greater flexibility to allow individual action

in resolution and recovery during bankruptcy compared with the phase of

insolvency resolution.”

82. As observed by this Court, speaking through Nariman, J in P.

Mohanraj & Ors. v. Shah Brothers Ispat Private Limited

“10. A cursory look at Section 14(1) makes it clear that subject to the

exceptions contained in sub-sections (2) and (3), on the insolvency

commencement date, the Adjudicating Authority shall mandatorily, by

order, declare a moratorium to prohibit what follows in clauses (a) to

(d). Importantly, under sub-section (4), this order of moratorium does

not continue indefinitely, but has effect only from the date of the order

declaring moratorium till the completion of the corporate insolvency

resolution process which is time bound, either culminating in the order

of the Adjudicating Authority approving a resolution plan or in

liquidation.

11. The two exceptions to Section 14(1) are contained in sub-sections

(2) and (3) of Section 14. Under sub-section (2), the supply of essential

goods or services to the corporate debtor during this period cannot be

terminated or suspended or even interrupted, as otherwise the

corporate debtor would be brought to its knees and would not able to

function as a going concern during this period...”

83. In Swiss Ribbons Private Limited & Anr. v. Union of India

and Ors.

, authored by Nariman, J. this Court observed:-

“28. It can thus be seen that the primary focus of the legislation is to

ensure revival and continuation of the corporate debtor by protecting

the corporate debtor from its own management and from a corporate

death by liquidation. The Code is thus a beneficial legislation which

puts the corporate debtor back on its feet, not being a mere recovery

legislation for creditors. The interests of the corporate debtor have,

10. 2021 SCC Online SC 152

11. (2019) 4 SCC 17

therefore, been bifurcated and separated from that of its

promoters/those who are in management. Thus, the resolution process

is not adversarial to the corporate debtor but, in fact, protective of its

interests. The moratorium imposed by Section 14 is in the interest of

the corporate debtor itself, thereby preserving the assets of the

corporate debtor during the resolution process. The timelines within

which the resolution process is to take place again protects the

corporate debtor's assets from further dilution, and also protects all its

creditors and workers by seeing that the resolution process goes

through as fast as possible so that another management can, through

its entrepreneurial skills, resuscitate the corporate debtor to achieve

all these ends.”

84. IBC has overriding effect over other laws. Section 238 of the IBC

provides that the provisions of the IBC shall have effect,

notwithstanding anything inconsistent therewith contained in any other

law, for the time being in force, or any other instrument, having effect

by virtue of such law.

85. Unlike coercive recovery litigation, the Corporate Insolvency

Resolution Process under the IBC is not adversarial to the interests of

the Corporate Debtor, as observed by this Court in Swiss Ribbons

Private Limited v. Union of India (supra).

86. On the other hand, the IBC is a beneficial legislation for equal

treatment of all creditors of the Corporate Debtor, as also the protection

of the livelihoods of its employees/workers, by revival of the Corporate

Debtor through the entrepreneurial skills of persons other than those in

its management, who failed to clear the dues of the Corporate Debtor to

its creditors. It only segregates the interests of the Corporate Debtor

from those of its promoters/persons in management.

87. Relegation of creditors to the remedy of Coercive litigation against

the Corporate Debtors could be detrimental to the interests of the

Corporate Debtor and its creditors alike. While multiple coercive

proceedings against a Corporate Debtor in different forums could

impede its commercial/business activities, deplete its cash reserves,

dissipate its assets, moveable and immoveable and precipitate its

commercial death, such proceedings might not be economically viable

for the creditors as well, because of the length of time consumed in the

litigations, the expenses of litigation, and the uncertainties of realisation

of claims even after ultimate success in the litigation.

88. It is, therefore, imperative that the provisions of the IBC and the

Rules and Regulations framed thereunder be construed liberally, in a

purposive manner to further the objects of enactment of the statute,

and not be given a narrow, pedantic interpretation which defeats the

purposes of the Act.

89. In construing and/or interpreting any statutory provision one must

look into the legislative intent of the statute. The intention of the

statute has to be found in the words used by the legislature itself. In

case of doubt it is always safe to look into the object and purpose of the

statute or the reason and spirit behind it. Each word, phrase or

sentence has to be construed in the light of the general purpose of the

Act itself, as observed by Mukherjea J., in Popatlal Shah v. State of

Madras

and a plethora of other judgments of this Court. To quote

Krishna Iyer J., the interpretative effort “must be illumined by the goal,

though guided by the words”.

90. When a question arises as to the meaning of a certain provision in

a statute the provision has to be read in its context. The statute has to

be read as a whole. The previous state of the law, the general scope

and ambit of the statute and the mischief that it was intended to

remedy are relevant factors.

91. On a careful reading of the provisions of the IBC and in particular

the provisions of Section 7(2) to (5) of the IBC read with the 2016

Adjudicating Authority Rules there is no bar to the filing of documents at

any time until a final order either admitting or dismissing the application

has been passed.

92. The time stipulation of fourteen days in Section 7(4) to ascertain

the existence of a default is apparently directory not mandatory. The

proviso inserted by amendment with effect from 28th December, 2019

provides that if the Adjudicating Authority has not ascertained the

default and passed an order under sub-section (5) of Section 7 of the

IBC within the aforesaid time, it shall record its reasons in writing for the

same. No other penalty is stipulated.

12. AIR 1953 SC 274

93. Furthermore, the proviso to Section 7(5)(b) of the IBC obliges the

Adjudicating Authority to give notice to an applicant, to rectify the

defect in its application within seven days of receipt of such notice from

the Adjudicating Authority, before rejecting its application under Clause

(b) of sub-section (5) of Section 7 of the IBC. When the Adjudicating

Authority calls upon the applicant to cure some defects that defect has

to be rectified within seven days. There is no penalty prescribed for

inability to cure the defects in an application within seven days from the

date of receipt of notice, and in an appropriate case, the Adjudicating

Authority may accept the cured application, even after expiry of seven

days, for the ends of justice.

94. Section 12 of the IBC imposes a time limit for completion of the

Corporate Insolvency Resolution Process. This time limit starts running

from the date of admission of an application to initiate the Corporate

Insolvency Resolution Process. Section 12 is, therefore, not attracted in

this case.

95. In any case, Section 12 has been considered by this Court in

Arcelormittal (India) Pvt. Ltd. V. Satish Kumar Gupta and Anr.

This Court held :-

“86. Given the fact that both the NCLT and NCLAT are to decide

matters arising under the Code as soon as possible, we cannot

shut our eyes to the fact that a large volume of litigation has now

to be handled by both the aforesaid Tribunals. What happens in a

case where the NCLT or the NCLAT decide a matter arising out of

13 . (2019) 2 SCC 1

Section 31 of the Code beyond the time-limit of 180 days or the

extended time-limit of 270 days? Actus curiae neminem

gravabit — the act of the court shall harm no man — is a maxim

firmly rooted in our jurisprudence (see Jang Singh v. Brij Lal [Jang

Singh v. Brij Lal, (1964) 2 SCR 145 : AIR 1966 SC 1631] , SCR at

p. 149 and A.R. Antulay v. R.S. Nayak [A.R. Antulay v. R.S. Nayak,

(1988) 2 SCC 602 : 1988 SCC (Cri) 372 : 1988 Supp (1) SCR 1] ,

SCR at p. 71). It is also true that the time taken by a Tribunal

should not set at naught the time-limits within which the

corporate insolvency resolution process must take place.

However, we cannot forget that the consequence of the chopper

falling is corporate death. The only reasonable construction of

the Code is the balance to be maintained between timely

completion of the corporate insolvency resolution process, and

the corporate debtor otherwise being put into liquidation. We

must not forget that the corporate debtor consists of several

employees and workmen whose daily bread is dependent on the

outcome of the corporate insolvency resolution process. If there

is a resolution applicant who can continue to run the corporate

debtor as a going concern, every effort must be made to try and

see that this is made possible. [ Regulation 32 of the Insolvency

and Bankruptcy Board of India (Liquidation Process) Regulations,

2016, states that the liquidator may also sell the corporate

debtor as a going concern.] A reasonable and balanced

construction of this statute would therefore lead to the result

that, where a resolution plan is upheld by the appellate authority,

either by way of allowing or dismissing an appeal before it, the

period of time taken in litigation ought to be excluded. This is not

to say that the NCLT and NCLAT will be tardy in decision-making.

This is only to say that in the event of the NCLT, or the NCLAT, or

this Court taking time to decide an application beyond the period

of 270 days, the time taken in legal proceedings to decide the

matter cannot possibly be excluded, as otherwise a good

resolution plan may have to be shelved, resulting in corporate

death, and the consequent displacement of employees and

workers.

87. Coming to the facts of the present case, let us first examine

the resolution plan presented by Numetal. Numetal was

incorporated in Mauritius on 13-10-2017, expressly for the

purpose of submission of a resolution plan qua the corporate

debtor i.e. ESIL. Two other companies viz. AHL and AEL, were also

incorporated on the same day in Mauritius. Shri Rewant Ruia, son

of Shri Ravi Ruia (who was the promoter of ESIL) held the entire

share capital of AHL, which in turn held the entire shareholding of

AEL, which in turn held the entire share capital of Numetal. At

this stage there can be no doubt whatsoever that Shri Rewant

Ruia, being the son of Shri Ravi Ruia, would be deemed to be a

person acting in concert with the corporate debtor, being

covered by Regulation 2(1)(q)(v) of the 2011 Takeover

Regulations.

96. Even in the case of Section 12 of the IBC, this Court taking note of

the workload of the Adjudicating Authority, in effect held that the time

stipulation was directory. This Court observed that failure to complete

the Resolution Process within stipulated time should not result in

corporate death by shelving of an otherwise good resolution plan. This

Court emphasized the need to maintain balance between timely

completion of the Corporate Insolvency Resolution Process and the

Corporate Debtor otherwise being put into liquidation, for failure to

maintain the time schedule.

97. The insolvency Committee of the Ministry of Corporate Affairs,

Government of India, in a report published in March 2018, stated that

the intent of the IBC could not have been to give a new lease of life to

debts which were already time barred. Thereafter Section 238A was

incorporated in the IBC by the Insolvency and Bankruptcy Code (Second

Amendment) Act, 2018 (Act 26 of 2018), with effect from 6th June 2018.

98. Section 238A of the IBC provides as follows:-

“238A. The provisions of the Limitation Act, 1963 (36 of 1963)

shall, as far as may be, apply to the proceedings or appeals

before the Adjudicating Authority, the National Company Law

Appellate Tribunal, the Debt Recovery Tribunal or the Debt

Recovery Appellate Tribunal, as the case may be.”

99. As observed by this Court in Sesh Nath Singh & Anr. Vs.

Baidyabati Sheoraphuli (supra), authored by one of us (Indira

Banerjee, J.), this Court held:-

“91. Legislature has in its wisdom chosen not to make the provisions

of the Limitation Act verbatim applicable to proceedings in

NCLT/NCLAT, but consciously used the words ‘as far as may be’. The

words ‘as far as may be’ are not meant to be otiose. Those words are

to be understood in the sense in which they best harmonise with the

subject matter of the legislation and the object which the Legislature

has in view. The Courts would not give an interpretation to those words

which would frustrate the purposes of making the Limitation Act

applicable to proceedings in the NCLT/NCLAT ‘as far as may be’.

xxx xxx xxx

94. The use of words ‘as far as may be’, occurring in Section 238A of

the IBC tones down the rigour of the words ‘shall’ in the aforesaid

Section which is normally considered as mandatory. The expression ‘as

far as may be’ is indicative of the fact that all or any of the provisions

of the Limitation Act may not apply to proceedings before the

Adjudicating Authority (NCLT) or the Appellate authority (NCLAT) if they

are patently inconsistent with some provisions of the IBC. At the same

time, the words ‘as far as may be’ cannot be construed as a total

exclusion of the requirements of the basic principles of Section 14 of

the Limitation Act, but permits a wider, more liberal, contextual and

purposive interpretation by necessary modification, which is in

harmony with the principles of the said Section.”

100. There is no specific period of limitation prescribed in the

Limitation Act, 1963, for an application under the IBC, before the

Adjudicating Authority (NCLT). An application for which no period of

limitation is provided anywhere else in the Schedule to the Limitation

Act, is governed by Article 137 of the Schedule to the said Act. Under

Article 137 of the Schedule to the Limitation Act, the period of limitation

prescribed for such an application is three years from the date of

accrual of the right to apply.

101. There can be no dispute with the proposition that the period of

limitation for making an application under Section 7 or 9 of the IBC is

three years from the date of accrual of the right to sue, that is, the date

of default. In Gaurav Hargovindbhai Dave v. Asset

Reconstruction Company (India) Ltd. (supra) authored by Nariman,

J. this Court held:-

“6. …...The present case being “an application” which is filed under

Section 7, would fall only within the residuary Article 137.”

102. In B. K. Educational Services Private Limited v. Parag

Gupta and Associates

, this Court speaking through Nariman, J.

held:-

“42. It is thus clear that since the Limitation Act is applicable to

applications filed under Sections 7 and 9 of the Code from the inception

of the Code, Article 137 of the Limitation Act gets attracted. “The right

to sue”, therefore, accrues when a default 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.”

103. In Jignesh Shah v. Union of India (supra) this Court speaking

through Nariman, J. reiterated the proposition that the period of

limitation for making an application under Section 7 or 9 of the IBC was

14 (2019) 11 SCC 633

three years from the date of accrual of the right to sue, that is, the date

of default.

104. In Vashdeo R. Bhojwani v. Abhyudaya Co-operative Bank

Ltd. & Ors.

this Court rejected the contention that the default was a

continuing wrong and Section 23 of the Limitation Act 1963 would

apply, relying upon Balkrishna Savalram Pujari Waghmare v.

Shree Dhyaneshwar Maharaj Sansthan

105. To quote P.B. Gajendragadkar, J in Balkrishna Savalram Pujari

Wagmare (supra):-

“......Section 23 refers not to a continuing right but to a continuing

wrong. It is the very essence of a continuing wrong that it is an act

which creates a continuing source of injury and renders the doer of

the act responsible and liable for the continuance of the said injury. If

the wrongful act causes an injury which is complete, there is no

continuing wrong even though the damage resulting from the act may

continue. If, however, a wrongful act is of such a character that the

injury caused by it itself continues, then the act constitutes a

continuing wrong. In this connection it is necessary to draw a

distinction between the injury caused by the wrongful act and what

may be described as the effect of the said injury. It is only in regard to

acts which can be properly characterised as continuing wrongs that

Section 23 can be invoked. .....”

106. There can be no dispute with the proposition of law laid down in

Babulal Vardharji Gurjar (supra) that limitation is essentially a mixed

question of law and facts and when a party seeks application of any

particular provision for extension or enlargement of the period of

15 (2019) 9 SCC 158

16. 1959 Supp (2) SCR 476

limitation, the relevant facts are required to be pleaded and requisite

evidence is required to be adduced.

107. The judgment of this Court in Babulal Vardharji Gurjar (supra)

was rendered in the facts of the aforesaid case, where the date of

default had been mentioned as 8.7.2011 being the date of N.P.A. and it

remained undisputed that there had neither been any other date of

default stated in the application nor had any suggestion about any

acknowledgement been made.

108. In the backdrop of the aforesaid facts, this court observed that

even if Section 18 of the Limitation Act and principles thereof were

applicable, the same would not apply to the application under

consideration, in view of the averments regarding default therein and

for want of any other averment with regard to acknowledgment.

109. It is well settled, that a judgment is a precedent for the issue of

law that is raised and decided and not any observations made in the

facts of the case. As very aptly penned by V. Sudhish Pai in

“Constitutional Supremacy-A Revisit”, “Judicial

utterances/pronouncements are in the setting of the facts of a particular

case. To interpret words and provisions of a statute it may become

necessary for judges to embark upon lengthy discussions, but such

discussion is meant to explain not define. Judges interpret statutes,

their words are not to be interpreted as statutes.” The aforesaid

passage was extracted and incorporated as part of the judgment of this

Court in Sesh Nath Singh (supra).

110. In this case, admittedly there were fresh documents before the

Adjudicating Authority (NCLT), including a letter of offer dated 3.03.2017

for one time settlement of the dues of the Corporate Debtor to the

Financial Creditor, upon payment of Rs.5.5 crores. The Appellant Bank

has also relied upon financial statements up to 31st March, 2018 apart

from the final judgment and order dated 27th March, 2017 in O.A.

16/2015 and the subsequent Recovery Certificate No.2060/2017 dated

25th May, 2017 which constituted cause of action for initiation of

proceedings under Section 7 of the IBC.

111. Babulal Vardharji Gurjar (supra) is not an authority for the

proposition that there can be no amendment of pleadings at the fag end

of the NCLT proceeding. Moreover, in this case, the amendments were

not made at the fag end of the proceedings but within 2/3 months of

their initiation, before admission of the petition under Section 7 of the

IBC.

112. It is not necessary for this Court to examine the relevance of all

the documents filed by the Appellant Bank pursuant to its interim

applications being I.A. No.27 of 2019 and I.A. No.131 of 2019. Suffice it

to mention that the documents enclosed with the applications being I.A.

No.27 of 2019 and I.A. No.131 of 2019 and the pleadings in the

supporting affidavits, made out a case for computation of limitation

afresh from the dates of the relevant documents. It would also be

pertinent to note that the reasons for the execution of the documents

are irrelevant. It is not the case of the Respondents, that any of those

documents were extracted through coercion.

113. As per Section 18 of Limitation Act, an acknowledgement of

present subsisting liability, made in writing in respect of any right

claimed by the opposite party and signed by the party against whom

the right is claimed, has the effect of commencing a fresh period of

limitation from the date on which the acknowledgement is signed. Such

acknowledgement need not be accompanied by a promise to pay

expressly or even by implication. However, the acknowledgement must

be made before the relevant period of limitation has expired.

114. In Sesh Nath Singh and Anr. v. Baidyabati Sheoraphuli

Cooperative Bank Ltd. (supra) this Court, speaking through one of

us (Indira Banerjee J.) held that the IBC does not exclude the

application of Section 14 or 18 or any other provision of the Limitation

Act. There is therefore no reason to suppose that Sections 14 or 18 of

the Limitation Act do not apply to proceedings under Section 7 or

Section 9 of the IBC.

115. In Laxmi Pat Surana v. Union Bank of India (supra) this Court

speaking through Khanwilkar J. held that there was no reason to exclude

the effect of Section 18 of the Limitation Act to proceedings initiated

under the IBC.

116. In Asset Reconstruction Company (India) Limited. v.

Bishal Jaiswal and Anr.(supra) where this Court speaking through

Nariman J. relied, inter alia, on Sesh Nath Singh (supra) and Laxmi

Pat Surana (supra) and held that the question of applicability of

Section 18 of the Limitation Act to proceedings under the IBC was no

longer res integra.

117. In Khan Bahadur Shapoor Fredoom Mazda v. Durga Prasad

Chamaria and Others

, this Court held:-

“6. It is thus clear that acknowledgment as prescribed by Section 19

merely renews debt; it does not create a new right of action. It is a

mere acknowledgment of the liability in respect of the right in

question; it need not be accompanied by a promise to pay

either expressly or even by implication. The statement on which a

plea of acknowledgment 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

acknowledgment 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 express 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 subsisting liability as at

the date of the statement. In construing words used in the statements

made in writing on which a plea of acknowledgment rests oral

evidence has been expressly excluded but surrounding circumstances

can always be considered. Stated generally courts lean in favour of a

liberal construction of such statements though it does not mean that

where no admission is made one should be inferred, or where a

statement was made clearly without intending to admit the existence

of jural relationship such intention could be fastened on the maker of

17 AIR 1961 SC 1236

the statement by an involved or far-fetched process of reasoning.

Broadly stated that is the effect of the relevant provisions contained in

Section 19, and there is really no substantial difference between the

parties as to the true legal position in this matter.”

118. 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 Asset Reconstruction

Company (India) Limited v. Bishal Jaiswall and Anr. (supra)

authored by Nariman, J. this Court quoted with approval the judgments,

inter alia, of Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff,

[“Bengal Silk Mills”] and in Re Pandem Tea Co.

19 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 that an acknowledgement of liability that is made in a balance

sheet can amount to an acknowledgement of debt.

119. In Bengal Silk Mills Co. (supra) the Calcutta High Court held:-

“9. ….. I am unable to agree with the reasoning of the Nagpur

decision that a balance-sheet does not save limitation because it is

drawn up under a duty to set out the claims made on the company

and not with the intention of acknowledging liability. The balancesheet contains admissions of liability; the agent of the company who

makes and signs it intends to make those admissions. The

admissions do not cease to be acknowledgements of liability merely

on the ground that they were made in discharge of a statutory duty. I

18 AIR 1962 Cal 115

19 AIR 1974 Cal 170

20 ILR (1972) 2 Del 712

21 ILR 1987 Kar 2673

notice that in the Nagpur case the balance-sheet had been signed by

a director and had not been passed either by the Board of Directors

or by the company at its annual general meeting and it seems that

the actual decision may be distinguished on the ground that the

balance-sheet was not made or signed by a duly authorized agent of

the company.”

……………..

11. To come under section 19 an acknowledgement of a debt need

not be made to the creditor nor need it amount to a promise to pay

the debt. In England it has been held that a balance-sheet of a

company stating the amount of its indebtedness to the creditor is a

sufficient acknowledgement in respect of a specialty debt under

section 5 of the Civil Procedure Act, 1833 (3 and 4 Will — 4c. 42),

see Re : Atlantic and Pacific Fibre Importing and Manufacturing Co.

Ltd., [1928] Ch. 836…….”

120. In Re Pandem Tea Co. Ltd. (supra), Sabyasachi Mukharji J.

held:

“4. Now the question is whether the statements, which are contained

in the profits and loss accounts and the assets and liabilities side

indicating the liability of the petitioning creditor along with the

statement of the Directors made to the shareholders as Directors'

report should be read together and if so whether reading these two

statements together these amount to an acknowledgement as

contemplated under Section 18 of the Limitation Act, 1963, or Section

19 of the Limitation Act, 1908. In my opinion, both these statements

have to be read together. The balance-sheet is meant to be presented

and passed by the shareholders and is generally accompanied by the

Directors' report to the shareholders. Therefore in understanding the

balance-sheets and in explaining the statements in the balancesheets, the balance-sheets together with the Directors' report must be

taken together to find out the true meaning and purport of the

statements. Counsel appearing for petitioning creditor contended that

under the statute the balance-sheet was a separate document and as

such if there was unequivocal acknowledgement on the balance-sheet

the statement of the Directors' report should not be taken into

consideration. It is true the balance-sheet is a statutory document and

perhaps is a separate document but the balance-sheet not confirmed

or passed by the shareholders cannot be accepted as correct.

Therefore, in order to validate the balance-sheet, it must be duly

passed by the shareholders at the appropriate meeting and in order to

do so it must be accompanied by a report, if any, made by the

Directors. Therefore, even though the balance-sheet may be a

separate document these two documents in the facts and

circumstances of the case should be read together and should be

construed together. It was held by the Supreme Court in the case

of L.C. Mills v. Aluminium Corpn. of India Ltd., (1971) 1 SCC 67 : AIR

1971 SC 1482, that it was clear that the statement on which the plea

of acknowledgement was founded should relate to a subsisting liability

as the section required and it should be made before the expiration of

the period prescribed under the Act. It need not, however, amount to

a promise to pay for an acknowledgement did not create a new right

of action but merely extended the period of limitation. The statement

need not indicate the exact nature or the specific character of the

liability. The words used in the statement in question must, however,

relate to a present subsisting liability and indicate the existence of a

jural relationship between the parties such as, for instance, that of a

debtor and a creditor and the intention to admit such jural

relationship. Such an intention need not, however, be in express terms

and could be inferred by implication from the nature of the admission

and the surrounding circumstances. Generally speaking, a liberal

construction of the statement in question should be given. That of

course did not mean that where a statement was made without

intending to admit the existence of jural relationship, such intention

should be fastened on the person making the statement by an

involved and far-fetched reasoning. In order to find out the intention of

the document by which acknowledgement was to be construed the

document as a whole must be read and the intention of the parties

must be found out from the total effect of the document read as a

whole. …”

121. In South Asia Industries (P) Ltd. v. General Krishna

Shamsher Jung Bahadur Rana (supra), this Court observed:-

“46. Shri Rameshwar Dial argued that statements in the balancesheet of a company cannot amount to acknowledgement of liability

because the balance-sheet is made under compulsion of the

provisions in the Companies Act. There is no force in this argument. In

the first place, section 18 of the Limitation Act, 1963, requires only

that the acknowledgement of liability must have been made in

writing, but it does not prescribe that the writing should be in any

particular kind of document. So, the fact that the writing is contained

in a balance-sheet is immaterial. In the second place, it is true that

section 131 of the Companies Act, 1913 (section 210 of the

Companies Act, 1956) makes it compulsory that an annual balance

sheet should be prepared and placed before the Company by the

Directors, and section 132 (section 211 of the Companies Act, 1956)

requires that the balance-sheet should contain a summary, inter alia,

of the current liabilities of the company. But, as pointed out by

Bachawat J. in Bengal Silk Mills v. Ismail Golam Hossain Ariff, AIR 1962

Cal 115 although there was statutory compulsion to prepare the

annual balance-sheet, there was no compulsion to make any

particular admission, and a document is not taken out of the purview

of section 18 of the Indian Limitation Act, 1963 (section 19 of the

Indian Limitation Act, 1908) merely on the ground that it is prepared

under compulsion of law or in discharge of statutory duty. Reference

may also be made to the decisions in Raja of

Vizianagram v. Vizianagram Mining Co. Ltd., AIR 1952 Mad

136, Jones v. Bellgrove Properties Ltd., (1949) 1 All ER 498; and Lahore

Enamelling and Stamping Co. v. A.K. Bhalla, AIR 1958 Punj 341, in

which statements in balance-sheets of companies were held to

amount to acknowledgements of liability of the companies.

47. Shri Rameshwar Dial referred to the decision of the Privy Council

in Consolidated Agencies Ltd. v. Bertram Ltd., (1964) 3 All ER 282. We

shall advert to this decision presently when we deal with another

argument of Shri Rameshwar Dial, and it is sufficient to state so far as

the argument under consideration is concerned that even in this

decision of the Privy Council it has been recognised that balancesheets could in certain circumstances amount to acknowledgements

of liability. It cannot, therefore, be said as a general proposition of law

that statements in balance-sheets of a company cannot operate at all

as acknowledgements of liability as contended by Shri Rameshwar

Dial.”

122. In Hegde & Golay Limited v. State Bank of India reported

in ILR 1987 Kar 2673, the Karnataka High Court held:

“43. The acknowledgement of liability contained in the balance-sheet

of a company furnishes a fresh starting point of limitation. It is not

necessary, as the law stands in India, that the acknowledgement

should be addressed and communicated to the creditor.”

123. In Reliance Asset Reconstruction Co. Ltd. v. Hotel Poonja

International Pvt. Ltd.

, the Appellant had relied on two documents

in the Paper Book, that is, (i) the Balance Sheet of the Corporate Debtor

dated 16th August, 2017 and (ii) a letter dated 23rd April, 2019 issued by

22. 2021 SCC Online SC 289

the Corporate Debtor to contend that the proceedings under Section 7

of the IBC were not barred by limitation, as limitation would start

running afresh for a period of three years from the respective dates of

those documents in acknowledgment of liability.

124. This Court, however, did not accept the balance sheet dated 16th

August, 2017 and 23rd April, 2019 for two reasons, the first reason being

that there was no evidence or materials to show that the documents

had been signed before the expiry of the prescribed period of limitation.

In addition, the Court found that there had been no pleading with regard

to the alleged acknowledgement in the application under Section 7 of

the IBC. This Court also found that the two documents could not be

construed as admission that amounted to acknowledgement of the jural

relationship and the existence of liability, since the balance sheet dated

16th August, 2017 did not acknowledge or admit any liability. Rather the

Corporate Debtor had disputed and denied its liability. Similarly, the

letter dated 23rd April, 2019 was also found not be an acknowledgment

or admission of liability. On the other hand, the language of the letter

made it absolutely clear that the liability had in fact been denied.

125. Significantly, in Reliance Asset Reconstruction (supra), the

loan had been sanctioned by Vijaya Bank in May 1986. The loan

amount was declared NPA on 1st April 1993, an original application

moved under the Debt Recovery Act was compromised in 2001 and the

DRT had issued a Recovery Certificate in May 2003. Vijaya Bank

assigned its Reliance Asset Reconstruction in May 2011 after which

amended Recovery Certificate was issued in December 2012. The

petition under Section 7 of the IBC was, however filed on 27th July 2018.

126. The finding of the NCLAT that there was nothing on record to

suggest that the ‘Corporate Debtor’ acknowledged the debt within three

years and agreed to pay debt is not sustainable in law, in view of the

Statement of Accounts/Balance sheets/Financial Statements for the

years 2016-2017 and 2017-2018 and the offer of One Time Settlement

referred to above including in particular, the offer of One Time

Settlement made on 3rd March, 2017.

127. Section 18 of the Limitation Act speaks of an Acknowledgment in

writing of liability, signed by the party against whom such property or

right is claimed. Even if the writing containing the acknowledgment is

undated, evidence might be given of the time when it was signed. The

explanation clarifies that an acknowledgment may be sufficient even

though it is accompanied by refusal to pay, deliver, perform or permit to

enjoy or is coupled with claim to set off, or is addressed to a person

other than a person entitled to the property or right. ‘Signed’ is to be

construed to mean signed personally or by an authorised agent.

128. In the instant case, Rs.111 lakhs had been paid towards

outstanding interest on 28th March, 2014 and the offer of One Time

Settlement was within three years thereafter. In any case, NCLAT

overlooked the fact that a Certificate of Recovery has been issued in

favour of Appellant Bank on 25th May 2017. The Corporate Debtor did

not pay dues in terms of the Certificate of Recovery. The Certificate of

Recovery in itself gives a fresh cause of action to the Appellant Bank to

institute a petition under Section 7 of IBC. The petition under Section 7

IBC was well within three years from 28th March 2014.

129. In Jignesh Shah and Another v. Union of India (supra), this

Court relied upon a judgment of the Patna High Court in Ferro Alloys

Corporation Limited v. Rajhans Steel Limited

, the relevant

portion whereof is extracted hereinbelow:-

“….In my opinion, the contention lacks merit. Simply because a suit

for realization of the debt of the petitioner Company against Opposite

Party 1 was instituted in the Calcutta High Court on its Original Side,

such institution of the suit and the pendency thereof in that Court

cannot enure for the benefit of the present winding-up proceeding.

The debt having become time-barred when this petition was presented

in this Court, the same could not be legally recoverable through this

Court by resorting to winding-up proceedings because the same cannot

legally be proved under Section 520 of the Act. It would have been

altogether a different matter if the petitioner Company approached this

Court for winding-up of the opposite party No.1, after obtaining a

decree from the Calcutta High Court in Suit No.1073 of 1987, and the

decree remaining unsatisfied, as provided in clause (b) of sub-section

(1) of Section 434.”

130. In effect, this Court speaking through Nariman J., approved

the proposition that an application under Section 7 or 9 of the IBC

may be time barred, even though some other recovery proceedings

might have been instituted earlier, well within the period of

limitation, in respect of the same debt. However, it would have been

23. (1999) SCC Online Pat 1196

a different matter, if the applicant had approached the Adjudicating

Authority after obtaining a final order and/or decree in the recovery

proceedings, if the decree remained unsatisfied. This Court held that

a decree and/or final adjudication would give rise to a fresh period of

limitation for initiation of the Corporate Insolvency Resolution

Process.

131. It is true that the finding of Patna High Court in Ferro Alloys

Corporation Limited v. Rajhans Steel Limited (supra) was rendered

in the context of Section 434(1)(b) of the Companies Act 1956, which

provided that a company would be deemed to be unable to pay its

debts if execution or other process issued on a decree or order of any

Court or Tribunal in favour of a creditor of the company was returned

unsatisfied in whole or in part.

132. We see no reason why the principles should not apply to an

application under Section 7 of the IBC which enables a financial creditor

to file an application initiating the Corporate Insolvency Resolution

Process against a Corporate Debtor before the Adjudicating Authority,

when a default has occurred. As observed earlier in this judgment, on a

conjoint reading of the provisions of the IBC quoted above, it is clear

that a final judgment and/or decree of any Court or Tribunal or any

Arbitral Award for payment of money, if not satisfied, would fall within

the ambit of a financial debt, enabling the creditor to initiate

proceedings under Section 7 of the IBC.

133. It is not in dispute that the Respondent No.2 is a Corporate Debtor

and the Appellant Bank, a Financial Creditor. The question is, whether

the petition under Section 7 of the IBC has been instituted within 3

years from the date of default. ‘Default’ is defined in Section 3(12) to

mean “non-payment’ of a debt which has become due and payable

whether in whole or any part and is not paid by the Corporate Debtor”.

134. It is true that, when the petition under Section 7 of IBC was filed,

the date of default was mentioned as 30th September 2013 and 31st

December 2013 was stated to be the date of declaration of the Account

of the Corporate Debtor as NPA. However, it is not correct to say that

there was no averment in the petition of any acknowledgment of debt.

Such averments were duly incorporated by way of amendment, and the

Adjudicating Authority rightly looked into the amended pleadings.

135. As observed above, the Appellant Bank filed the Petition under

Section 7 of the IBC on 12th October 2018. Within three months, the

Appellant Bank filed an application in the NCLT, for permission to place

additional documents on record including the final judgment and

order/decree dated 27.3.2017 in O.A. 16/2015 and the Recovery

Certificate dated 25.5.2017, enabling the Appellant Bank to recover

Rs.52 crores odd. The judgment and order/decree of the DRT and the

Recovery Certificate gave a fresh cause of action to the Appellant Bank

to initiate a petition under Section 7 of the IBC.

136. On or about 5th March 2019, the Appellant Bank filed another

application for permission to place on record additional documents

including inter alia financial statements, Annual Report etc. of the

period from 1st April 2016 to 31st March 2017, and again, from 1st April

2017 to 31st March 2018 and a letter dated 3rd March 2017 proposing a

One Time Settlement. This application was also allowed on 6th March

2021. The Adjudicating Authority, took into consideration the new

documents and admitted the petition under Section 7 of the IBC.

137. Even assuming that documents were brought on record at a later

stage, as argued by Mr. Shivshankar, the Adjudicating Authority was not

precluded from considering the same. The documents were brought on

record before any final decision was taken in the Petition under Section

7 of IBC.

138. A final judgment and order/decree is binding on the judgment

debtor. Once a claim fructifies into a final judgment and order/decree,

upon adjudication, and a certificate of Recovery is also issued

authorizing the creditor to realize its decretal dues, a fresh right accrues

to the creditor to recover the amount of the final judgment and/or

order/decree and/or the amount specified in the Recovery Certificate.

139. The Appellant Bank was thus entitled to initiate proceedings

under Section 7 of the IBC within three years from the date of issuance

of the Recovery Certificate. The Petition of the Appellant Bank, would

not be barred by limitation at least till 24th May, 2020.

140. While it is true that default in payment of a debt triggers the right

to initiate the Corporate Resolution Process, and a Petition under

Section 7 or 9 of the IBC is required to be filed within the period of

limitation prescribed by law, which in this case would be three years

from the date of default by virtue of Section 238A of the IBC read with

Article 137 of the Schedule to the Limitation Act, the delay in filing a

Petition in the NCLT is condonable under Section 5 of the Limitation Act

unlike delay in filing a suit. Furthermore, as observed above Section 14

and 18 of the Limitation Act are also applicable to proceedings under

the IBC.

141. Section 18 of the Limitation Act cannot also be construed with

pedantic rigidity in relation to proceedings under the IBC. This Court

sees no reason why an offer of One Time Settlement of a live claim,

made within the period of limitation, should not also be construed as an

acknowledgment to attract Section 18 of the Limitation Act. In Gaurav

Hargovindbhai Dave (supra) cited by Mr. Shivshankar, this Court had

no occasion to consider any proposal for one time settlement. Be that

as it may, the Balance Sheets and Financial Statements of the Corporate

Debtor for 2016-2017, as observed above, constitute acknowledgement

of liability which extended the limitation by three years, apart from the

fact that a Certificate of Recovery was issued in favour of the Appellant

Bank in May 2017. The NCLT rightly admitted the application by its

order dated 21st March, 2019.

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

acknowledgement of the debt by the Corporate Debtor before expiry of

the period of limitation of three years, in which case the period of

limitation would get extended by a further period of three years.

143. Moreover, a judgment and/or decree for money in favour of the

Financial Creditor, passed by the DRT, or any other Tribunal or Court, or

the issuance of a Certificate of Recovery in favour of the Financial

Creditor, would give rise to a fresh cause of action for the Financial

Creditor, to initiate proceedings under Section 7 of the IBC for initiation

of the Corporate Insolvency Resolution Process, within three years from

the date of the judgment and/or decree or within three years from the

date of issuance of the Certificate of Recovery, if the dues of the

Corporate Debtor to the Financial Debtor, under the judgment and/or

decree and/or in terms of the Certificate of Recovery, or any part

thereof remained unpaid.

144. There is no bar in law to the amendment of pleadings in an

application under Section 7 of the IBC, or to the filing of additional

documents, apart from those initially filed along with application under

Section 7 of the IBC in Form-1. In the absence of any express provision

which either prohibits or sets a time limit for filing of additional

documents, it cannot be said that the Adjudicating Authority committed

any illegality or error in permitting the Appellant Bank to file additional

documents. Needless however, to mention that depending on the facts

and circumstances of the case, when there is inordinate delay, the

Adjudicating Authority might, at its discretion, decline the request of an

applicant to file additional pleadings and/or documents, and proceed to

pass a final order. In our considered view, the decision of the

Adjudicating Authority to entertain and/or to allow the request of the

Appellant Bank for the filing of additional documents with supporting

pleadings, and to consider such documents and pleadings did not call

for interference in appeal.

145. For the reasons discussed above, the impugned judgment and

order is unsustainable in law and facts. The appeal is accordingly

allowed, and the impugned judgment and order of the NCLAT is set

aside.

….……………………………………. J.

[INDIRA BANERJEE]

………..……………………………… J.

[V. RAMASUBRAMANIAN]

NEW DELHI;

AUGUST 04, 2021

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