BABULAL VARDHARJI GURJAR versus VEER GURJAR ALUMINIUM INDUSTRIES PVT. LTD. & ANR.
[2020] 13 S.C.R. 368, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Arguments
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   [2020] 13 S.C.R. 368
BABULAL VARDHARJI GURJAR
v.
VEER GURJAR ALUMINIUM INDUSTRIES PVT. LTD. & ANR.
(Civil Appeal No. 6347 of 2019)
AUGUST 14, 2020
[A.M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Insolvency and Bankruptcy Code, 2016 – ss.7 and 238-A –
Limitation Act, 1963 – s.18 and Art.137 – On or about 22.12.2007,
the Lender Banks sanctioned and extended various loans, advances
and facilities to the corporate debtor-respondent no.1 – The
respondent no.1 defaulted in payment of the amount due against
such loans, advances and facilities, its account was classified as
Non-Performing Asset on 08.07.2011 – Recovery proceedings
against the corporate debtor by the consortium of lenders u/s.19 of
the Recovery of Debts due to the Banks and Financial Institution
Act, 1993 before the DRT was started – On or about 21.03.2018,
the respondent no.2, while stating its capacity as the financial
creditor, for being the assignee of the loans and advances disbursed
by the creditor Bank to the corporate debtor, filed an application u/
s.7 of the Code before the Adjudicating Authority and sought
initiation of Corporate Insolvency Resolution Process (CIRP) in
respect of respondent no.1 – The Adjudicating Authority (NCLT)
admitted the said application and initiated CIRP u/s.7 of the Code
– Before the Appellate Tribunal (NCLAT), the appellant-the director
of the respondent no.1 company contended that the claim was barred
by time – However,
the appeal was dismissed by the Appellate
Tribunal – Aggrieved, the appellant filed appeal before the Supreme
Court – The Supreme Court remanded the matter to the Appellate
Tribunal for deciding the issue of limitation with respect to the
application u/s.7 of the Code – The Appellate Tribunal held that the
right to apply u/s. 7 of the Code accrued only on 01.12.2016 i.e.
when the Code came into force and hence, the application filed by
the Financial creditor in the year 2018 is not barred by limitation;
and that the period of limitation is 12 years for recovery of possession
of the mortgaged property, therefore, the claim is not barred by
limitation – On appeal, held: The period of limitation for an
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application seeking initiation of CIRP u/s.7 of the Code is governed
by Art.137 of the Limitation Act and is, therefore, three years from
the date when right to apply accrues – In the instant case, the
application made by the respondent no.2 u/s.7 of the Code in the
month of March 2018, seeking initiation of CIRP in respect of the
corporate debtor with specific assertion to the date of default as
08.07.2011 is clearly barred by limitation for having filed much
later than the period of three years from the date of default as stated
in the application – The NCLT had not even examined the question
of limitation – Whereas, the NCLAT had decided the question of
limitation on entirely irrelevant considerations – There is nothing in
the Code to even remotely indicate if the period of limitation for the
purpose of an application u/s.7 is to commence from the date of
commencement of the Code itself – The NCLAT proceeded only on
assumption, without any foundation and without any basis – Further,
the reasoning of the NCLAT that property being mortgaged, the
period of limitation is of twelve years is again erroneous and do
not stand in conformity with the dictum of the Supreme Court – As
in the B.K. Educational Service, it was held in no uncertain terms
that the limitation provided in Art.137 governs the application u/s.
7 of the Code – Therefore, the impugned orders deserve to be set
aside and the application filed by the respondent no.2 is rejected
as being barred
by limitation.
Allowing the appeal, the Court
HELD : 1. When Section 238-A of the Insolvency and
Bankruptcy Code, 2016  is read with the consistent decisions of
this Court in Innoventive Industries, B.K. Educational Services,
Swiss Ribbons, K. Sashidhar, Jignesh Shah, Vashdeo R. Bhojwani,
Gaurav Hargovindbhai Dave and Sagar Sharma respectively, the
following basics undoubtedly come to the fore: (a) that the Code
is a beneficial legislation intended to put the corporate debtor
back on its feet and is not a mere money recovery legislation; (b)
that CIRP is not intended to be adversarial to the corporate debtor
but is aimed at protecting the interests of the corporate debtor;
(c) that intention of the Code is not to give a new lease of life to
debts which are time-barred; (d) that the period of limitation for
BABULAL VARDHARJI GURJAR v. VEER GURJAR
ALUMINIUM INDUSTRIES PVT. LTD. & ANR.
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an application seeking initiation of CIRP under Section 7 of the
Code is governed by Article 137 of the Limitation Act and is,
therefore, three years from the date when right to apply accrues;
(e) that the trigger for initiation of CIRP by a financial creditor is
default on the part of the corporate debtor, that is to say, that the
right to apply under the Code accrues on the date when default
occurs; (f) that default referred to in the Code is that of actual
non-payment by the corporate debtor when a debt has become
due and payable; and (g) that if default had occurred over three
years prior to the date of filing of the application, the application
would be time-barred save and except in those cases where, on
facts, the delay in filing may be condoned; and (h) an application
under Section 7 of the Code is not for enforcement of mortgage
liability and Article 62 of the Limitation Act does not apply to this
application. [Para 30][420-B-E]
Whether Section 18 Limitation Act could be applied to the
present case.
2.  On the admitted fact situation of the present case, where
only the date of default as ‘08.07.2011’ 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 acknowledgement or any other date of default, in
view of this Court, the submissions sought to be developed on
behalf of the respondent No. 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, the respondent No. 2
never came out with any pleading other than stating the date of
default as ‘08.07.2011’ 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,
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looking to the very averment regarding default therein and for
want of any other averment in regard to acknowledgement. [Para
33.1][422-D-G]
The reasonings of NCLAT
3.  Only two reasons essentially appear to have weighed
with NCLAT to hold that the application in question is within
limitation: One, that the right to apply under Section 7 of the
Code accrued to the respondent financial creditor on 01.12.2016
when the Code came into force; and second, that the period of
limitation for recovery of possession of the mortgaged property
is twelve years. The reasonings so adopted by NCLAT do not
stand in conformity with the law declared by this Court and could
only be disapproved.  [Para 35][423-E-F]
4.  The question as to whether date of enforcement of the
Code (i.e., 01.12.2016) provides the starting point of limitation
for an application under Section 7 of the Code and hence, the
application in question, made in the year 2018, is within limitation,
is not even worth devoting much time. A bare look at the
impugned order leaves nothing to guess that such observations
by the Appellate Tribunal had only been assumptive in nature
without any foundation and without any basis. There is nothing in
the Code to even remotely indicate if the period of limitation for
the purpose of an application under Section 7 is to commence
from the date of commencement of the Code itself. Similarly,
nothing provided in the Limitation Act could be taken as the basis
to support the
proposition so stated by the Appellate Tribunal.
In fact, such observations had been in the teeth of law declared
by this Court in the case of B. K. Educational Services. [Para
36][423-G-H; 424-A-B]
5.  The other observations as made and the reasoning as
adopted by the Appellate Tribunal in the impugned order, that
the property having been mortgaged, the claim is not barred by
limitation because of the period of limitation of twelve years with
regard to mortgaged property, had again been erroneous and do
not stand in conformity with the dictum of this Court. [Para
37][424-E-F]
BABULAL VARDHARJI GURJAR v. VEER GURJAR
ALUMINIUM INDUSTRIES PVT. LTD. & ANR.
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6.  The Appellate Tribunal was conscious of the decision of
this Court in B. K. Educational Services wherein it had been held
in no uncertain terms that the limitation provided in Article 137
governs the application under Section 7 of the Code. When
Article 137, being the residuary provision on the period of
limitation for “other applications” is held applicable by this Court
for the purpose of reckoning the period of limitation for an
application under Section 7 of the Code, it remains rather
inexplicable as to how the Appellate Tribunal could have applied
any other Article of Limitation Act (and that too relating to suits)
for the purpose of such an application? [Para 37.1][424-F-H]
7.  There remains nothing to doubt that the Appellate
Tribunal had been in error in applying the period of limitation
provided for mortgage liability for the purpose of limitation
applicable to the application in question. The observations and
findings in the impugned order are also required to be
disapproved. [Para 37.4][425-E-F]
8.  The discussion foregoing leads to the inescapable
conclusion that the application made by the respondent No. 2
under Section 7 of the Code in the month of March 2018, seeking
initiation of CIRP in respect of the corporate debtor with specific
assertion of the date of default as 08.07.2011, is clearly barred by
limitation for having been filed much later than the period of three
years from the date of
default as stated in the application. The
NCLT having not examined the question of limitation; the NCLAT
having decided the question of limitation on entirely irrelevant
considerations; and the attempt on the part of the respondents
to save the limitation with reference to the principles of
acknowledgment having been found unsustainable, the impugned
orders deserve to be set aside and the application filed by the
respondent No. 2 deserves to be rejected as being barred by
limitation. [Para 38][425-F-H; 426-A]
Innoventive Industries Ltd. v. ICICI Bank: (2018) 1
SCC 407 : [2017] 8 SCR 33; B.K. Educational Services
Pvt. Ltd. v. Paras Gupta & Associates: AIR 2018 SC
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5601 : [2018] 12 SCR 794; Swiss Ribbons Private
Limited and Anr. v. Union of India and Ors. (2019) 4
SCC 17 : [2019] 3 SCR 535; K. Sashidhar v. Indian
Overseas Bank: (2019) 12 SCC 150 : [2019] 3 SCR
845; Jignesh Shah and Anr. v. Union of India and Anr.
(2019) 10 SCC 750 : [2019] 12 SCR 678; Vashdeo R.
Bhojwani v. Abhyudaya Co-operative Bank Ltd. & Anr.
(2019) 9 SCC 158 : [2019] 12 SCR 75; Gaurav
Hargovindbhai Dave v. Asset Reconstruction Company
(India) Ltd. & Anr. (2019) 10 SCC 572 : [2019] 13
SCR 224; Sagar Sharma & Anr. v. Phoenix Arc Pvt.
Ltd. & Anr (2019) 10 SCC 353: [2019] 14 SCR 974 –
relied on.
M/s. Mahabir Cold Storage v. CIT, Patna 1991 Supp
(1) SCC 402: [1990] 3 Suppl. SCR 469 N.Balakrishnan
v. Krishnamurthy (1998) 7 SCC 123 : [1998] 1 Suppl.
SCR 403; Anuj Jain v. Axis Bank Limited and Ors.
(2020) 8 SCC 401 – referred to.
Case Law Reference
[2017] 8 SCR 33
relied on
Para 7.1
[2018] 12 SCR 794
relied on
Para 9.2
[2019] 3 SCR 845
relied on
Para 13.3
[2019] 12 SCR 75
relied on
Para 13.3
[2019] 13 SCR 224
relied on
Para 13.3
[2019] 14 SCR 974
relied on
Para 13.4
[2019] 12 SCR 678
relied on
Para 13.5
[2019] 3 SCR 535
relied on
Para 13.7
[1990] 3 Suppl. SCR 469 referred to
Para 14.3
[1998] 1 Suppl. SCR 403 referred to
Para 14.5
(2020) 8 SCC 401
referred to
Para 18.1
BABULAL VARDHARJI GURJAR v. VEER GURJAR
ALUMINIUM INDUSTRIES PVT. LTD. & ANR.
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6347
OF 2009.
From the Judgment and Order dated 14.05.2019 of the National
Company Law Appellate Tribunal, New Delhi in Company Appeal (AT)
Insolvency No. 549 of 2018.
Dr. Abhishek Manu Singhvi, P.S. Patwalia, Sr. Advs, Piyush Singh,
Aditya Parolia, Nithin Chandran, Akshay Srivastava, Nidhiram Shrama,
Gaurav Goel, Rajesh Kumar, Sonal Jain, Ms. Heena Sharma, Ishkaran
Singh, Ms. Namrata Singh, Ms. Kajal Sharma, Rajendra Beniwal,
Divyanshu Srivastava, Kumar Sumit, Ms. Bano Deshwal, Vishal Thakur,
Shriram, Manish Rao, R. C. Kaushik, Advs. for the appearing parties.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
Introductory with brief outline and issue involved
1. This  appeal under Section 62 of the Insolvency and Bankruptcy
Code, 20161 is directed against the judgment and order dated 14.05.2019
passed by the National Company Law Appellate Tribunal, New Delhi2
in Company Appeal (AT) Insolvency No. 549 of 2018 whereby, the
Appellate Tribunal has rejected the contention that the application made
by respondent No. 2 under Section 7 of the Code, seeking initiation of
Corporate Insolvency Resolution Process3 in respect of the debtor
company (respondent No. 1 herein), is barred by limitation; and has
declined to interfere with the order dated 09.08.2018, passed by the
National Company Law Tribunal, Mumbai Bench4 in CP(IB)-488/I&BP/
MB/2018, for commencement of
CIRP as prayed for by the respondent
No. 2.
2. A brief introduction of the parties and the subject matter as also
a thumbnail sketch of the relevant orders passed in this matter and the
issue involved shall be apposite at the very outset.
2.1. The appellant Shri Babulal Vardhaji Gurjar has been the director
of the respondent No. 1 company viz., Veer Gurjar Aluminium Industries
1 Hereinafter also referred to as  ‘the Code’ or ‘IBC’.
2 Hereinafter also referred to as ‘the Appellate Tribunal’ or ‘NCLAT’.
3 ‘CIRP’ for short.
4 Hereinafter also referred to as ‘the Adjudicating Authority’ or ‘the Tribunal’ or ‘NCLT’.
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Pvt. Ltd.5 On or about 21.03.2018, the respondent No. 2 JM Financial
Assets Reconstruction Company Pvt. Ltd.6, while stating its capacity as
the financial creditor, for being the assignee of the loans and advances
disbursed by creditor bank to the corporate debtor, filed the said application
under Section 7 of the Code before the Adjudicating Authority and sought
initiation of CIRP in respect of the respondent No. 1.
2.2. After having considered the submissions on behalf of the
financial creditor and the corporate debtor, the Adjudicating Authority,
by its order dated 09.08.2018, admitted the application so made by the
financial creditor and appointed an interim resolution professional7.
Consequent to this order dated 09.08.2018, the corporate debtor
(respondent No. 1) is now represented by the interim resolution
professional.
2.3. Being aggrieved by the aforesaid order dated 09.08.2018, the
appellant preferred an appeal before NCLAT and contended against
maintainability of the application moved by the respondent No. 2. The
appeal so filed by the appellant was summarily dismissed by the Appellate
Tribunal by its order dated 17.09.2018. However, the order so passed by
the Appellate Tribunal was not approved by this Court in the judgment
dated 26.02.2019, passed in Civil Appeal No. 10710 of 2018, after finding
that the issue relating to limitation, though raised, was not decided by the
Appellate Tribunal. Hence, the matter was remanded to NCLAT for
specifically dealing with the issue of limitation. After such remand, the
Appellate Tribunal, by its impugned order dated 14.05.2019, has held
that neither the application under Section 7 as made in this case is barred
by limitation nor the claim of the respondent No. 2 is so barred and has,
therefore, again dismissed the appeal. Being aggrieved, the appellant
has approached this Court over again by way of the instant appeal.
3. In the impugned order dated 14.05.2019, the Appellate Tribunal
has observed that the Code having come into force on 01.12.2016, the
application made in the year 2018 is within limitation. The Appellate
Tribunal has assigned another reason that mortgage security having been
provided by the corporate debtor, the limitation period of twelve years is
available for the claim made by the financial creditor as per Article 61
5 Hereinafter also referred to as ‘the corporate debtor’.
6 Hereinafter also referred to as ‘the financial creditor’.
7 ‘IRP’ for short.
BABULAL VARDHARJI GURJAR v. VEER GURJAR ALUMINIUM
INDUSTRIES PVT. LTD. [DINESH MAHESHWARI, J.]
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(b) of the Limitation Act, 19638-9 and hence, the application is within
limitation.
4.  In this appeal, the order so passed by the Appellate Tribunal is
in challenge. The appellant would contend that limitation period for an
application under Section 7 of the Code is three years as per Article 137
of the Limitation Act, where the date of alleged “default” is the starting
point of limitation; and in the present case, such date of default being
specifically mentioned as 08.07.2011, the application filed by the
respondent No. 2 in the month of March 2018 is barred by limitation. On
the other hand, the respondents would argue that the liability in relation
to the debt in question having been consistently acknowledged by the
corporate debtor in its balance sheets and annual reports, fresh period of
limitation is available from the date of every such acknowledgment and
hence, the application is within time.
4.1. Thus, the basic issue involved in this matter is as to whether
the application made by respondent No. 2 under Section 7 of the Code is
within limitation.
5. On 09.08.2019, after having heard learned counsel for the
appellant and the respondent No. 2 preliminarily, we issued notice to the
respondent No.1 and by way of interim order, directed status quo in
regard to the proceedings in question.
The relevant factual and background aspects: Application
by the financial creditor
6. The substance of the relevant factual
and background aspects,
as emanating from the contents of the application under Section 7 moved
by the respondent No. 2 and the observations made by NCLT and
NCLAT in the impugned orders as also those noticed from the submissions
made by the respective parties, could now be summarised as infra.
8 Hereinafter, the Limitation Act, 1963 is also referred to as ‘the Limitation Act’.
9 Note: The Articles providing for different periods of limitation are contained in the
Schedule to the Limitation Act, 1963 that is divided in three major Divisions viz., First
Division (relating to suits); Second Division (relating to appeals); and Third Division
(relating to applications). Each Division is further divided in parts with reference to the
subject matter. However, the Articles in the Schedule are arranged ad seriatim. Hence,
for brevity and continuity, the Articles are mentioned with reference to ‘the Limitation
Act’ only. The Schedule and particular Part/Division have been referred wherever
required contextually.
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6.1. On or about 22.12.2007, the lender banks viz., Corporation
Bank, Indian Overseas Bank and Bank of India sanctioned and extended
various loans, advances and facilities to the corporate debtor viz., Veer
Gurjar Aluminium Industries Pvt. Ltd., who was engaged in
manufacturing of aluminium ingots from aluminium scrap. The corporate
debtor executed various security documents in favour of the lender banks
in the years 2008 and 2009, including those of equitable mortgage against
the facilities so obtained. The Corporation Bank proceeded to rephase/
enhance the facilities to the corporate debtor from time to time and
lastly on 27.08.2010 wherefor, various additional security documents were
executed by the corporate debtor. It has been asserted by the respondent
No. 2 that the Corporation Bank had assigned to it the rights in relations
to debts of the corporate debtor by way of Assignment Agreement dated
30.03.2013; and a deed of modification of charge over the assets of the
corporate debtor was also executed on 26.04.2013.
6.2. The corporate debtor having defaulted in payment of the
amount due against such loans, advances and facilities, its account with
Corporation Bank was classified as Non-Performing Asset10 on
08.07.2011 and that with Indian Overseas Bank was classified as NPA
on 05.08.2011. Then, on 15.11.2011, demand notice under Section 13(2)
of the Securitisation and Reconstruction of Financial Assets and
Enforcement of Securities Interest Act,
200211 was issued by Indian
Overseas Bank to the corporate debtor and its guarantors. These steps
were followed up with recovery proceedings against the corporate debtor
by the consortium of lenders and respondent No. 2 in OA No. 172/2013
before the Debts Recovery Tribunal, Aurangabad12 under Section 19 of
the Recovery of Debts Due to the Banks and Financial Institution Act,
199313.
6.3. Even when the aforesaid proceedings were pending before
DRT, on or about 21.03.2018, the respondent No. 2 moved an application
before the Adjudicating Authority under Section 7 of the Code, in Form
1 as provided in the Insolvency and Bankruptcy (Application to
Adjudicating Authority) Rules, 201614, for initiation of CIRP in relation
10 ‘NPA’ for short.
11 Hereinafter also referred to as ‘the SARFAESI Act’.
12 ‘DRT ’ for short.
13 Hereinafter also referred to as ‘the Act of 1993’.
14 Hereinafter also referred to as ‘the Rules of 2016’.
BABULAL VARDHARJI GURJAR v. VEER GURJAR ALUMINIUM
INDUSTRIES PVT. LTD. [DINESH MAHESHWARI, J.]
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to the corporate debtor while stating its own capacity as the financial
creditor, for being the assignee of loans and advances disbursed by
Corporation Bank to the corporate debtor15. Several details and particulars
stated in the said application need not be recounted but, the particulars
of amount claimed to be in default and the date when such default
occurred, as stated in point No. 2 of Part III of the application, are
relevant for the present purpose and could be usefully extracted as
under16:-
6.4. It may also be usefully indicated that Part-V of the application,
drawn as per the format in Form 1, required the applicant to state the
“Particulars of Financial Debt [Documents, Records and Evidence of
Default]”. The applicant stated the particulars of various securities held,
date of their creation etc., as also the particulars relating to the said
O.A. No. 172 of 2013 before DRT and notices issued thereunder. In
Point No. 5 of the said Part-V of the application, the applicant was
required to attach “the latest and complete copy of the financial contract
reflecting all amendments and waivers to date”. In this regard, again,
various agreements for loan, promissory notes, tripartite agreements,
15 Note: In its written submissions, the respondent No. 2 has mentioned the date of
filing this applic
ation as  ‘28.02.2018 ’ but the copy of a pplication placed on record as Annexure A-5
(pp. 135-158) bears the date as
’21.03.2018’.
16 Note: this extraction is from the copy of application placed on record as Annexure A-
5 (at p. 140-142). The expression “DATES” marked with * in the second column is
reproduced as found mentioned at p. 141 but, in the format appended to the Rules of
2016, this entry carries the expression “DAYS”.
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consortium agreements and supplemental agreements were mentioned
by the applicant. In Point No. 8, the applicant was required to give out
other documents “in order to prove the existence of financial debt, the
amount and date of default”. The contents on this Point No. 8 of Part-V
of the application could be reproduced as under:-
“8. LIST OF OTHER DOCUMENTS ATTACHED TO THIS
APPLICATION IN ORDER TO PROVE THE EXISTENCE
OF FINANCIAL DEBT, THE AMOUNT AND DATE OF
DEFAULT
i.
Registered notice dated 05.07.2011 issued by Indian
Overseas Bank to the corporate debtor to repay the overdue
amount. Hereto annexed and marked as Exhibit MM is the
copy of said registered notice.
ii.
Demand notice dated 15.11.2011 issued under section 13
(2) of the Securitisation Act by Indian Overseas Bank being
consortium leader. Hereto annexed and marked as Exhibit
NN is the copy of said Demand notice.
iii.
Publication of Demand Notice issued in two newspaper i.e
Business Standard and Saamna under the SARFEASI Act
dated 28.12.2011. Hereto annexed and marked Exhibit OO
is the copy of said Paper Publication.
iii.
(sic). Objection to the Demand Notice and the reply to the
said Objections by IOB dated 14.01.2012 and 21.01.2012
respectively. Hereto annexed and marked as Exhibit PP
and Exhibit QQ is the copy of said objection and reply letter.
v.
Registered Assignment Agreement dated 30.03.2013
between Corporation Bank and (Financial Creditor thereby
Corporation Bank assigned the debt due
from Corporate
debtor along with the underlying securities in favour of the
Financial Creditor/ Applicant. Hereto annexed and marked
as Exhibit RR is the copy of said Registered Assignment
Agreement dated 30.03.2013 between Corporation Bank
and Financial Creditor.”
6.5. The application so made by respondent no. 2 came to be
registered as CP(IB)-488/I&BP/MB/2018 before the Adjudicating
Authority (NCLT). On being noticed, the corporate debtor submitted its
BABULAL VARDHARJI GURJAR v. VEER GURJAR ALUMINIUM
INDUSTRIES PVT. LTD. [DINESH MAHESHWARI, J.]
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reply in opposition and raised various objections on the contents and
frame of the application. It was also contended that various proceedings
had been initiated with the sole aim of browbeating the corporate debtor
and forcing it to pay the unrealistic claim of the applicant. With specific
reference to the proceedings under the SARFAESI Act, it was contended
that as per the notice under Section 13 (2), the account of corporate
debtor with Indian Overseas Bank was classified as NPA on 05.08.2011
but, it was not mentioned as to when the loan account with Corporation
Bank was classified as NPA. The corporate debtor also contended that
its loan account had not been properly maintained by the respective
banks due to the defect in accounting system and it was clear that the
claim was arbitrary, inflated and not recoverable. With reference to the
proceedings pending before DRT in OA No. 172/2013, it was also
contended that IBC would not apply to cases where the bank has
approached DRT or has adopted the proceeding under the SARFAESI
Act and, for this reason, the present proceedings were not maintainable
before the Adjudicating Authority.
6.6. The applicant financial creditor filed a rejoinder and refuted
all the objections of the corporate debtor while asserting, inter alia, that
the Corporation Bank declared the account of the corporate debtor as
NPA on 08.07.2011 and this fact was mentioned in the demand notice
issued
under Section 13(2) of SARFAESI Act, as sent by Indian Overseas
Bank on behalf of the consortium of banks.
Initiation order dated 09.08.2018
7. The Adjudicating Authority, in its order dated 09.08.2018, dealt
with the submissions of the parties and, while rejecting the objections of
corporate debtor in relation to the frame of application and the correctness
of loan accounts, held that the applicant was entitled to initiate CIRP
under Section 7 of the Code when there was a debt and there was
default; and that being a statutory remedy available to the financial
creditor, the corporate debtor cannot question its maintainability only for
the applicant having adopted other proceedings under other enactments.
As regards the question of debt and default, the NCLT, inter alia,
observed and held as under:-
“16. The Corporate Debtor contended that demand notice issued
under the SARFAESI Act, by Indian Overseas Bank does not
contain the date of NPA of the loan of Corporation Bank. The
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petitioner in the rejoinder submitted that the date of NPA of
Corporation Bank was mentioned as 08.07.2011 in the SARFAESI
Notice. This Bench has gone through the SARFAESI Notice and
the date of NPA of Corporation Bank is mentioned as 08.07.2011
at pg. no. 579. Hence this contention of the Corporate Debtor
fails. Further the explanation to Section 7(1) of IB Code provides
that a default includes a default in respect of a financial debt
owed not only to the Applicant Financial Creditor but also to any
other Financial Creditor of the Corporate Debtor. In view of
admission of date of NPA of Indian Overseas Bank by the
Petitioner in the reply this case squarely falls under the ambit of
explanation to Section 7(1) of the Code which is a proof of debt
and default of debt due to another Financial Creditor. This Petition
can be admitted based on the reply filed by the Corporate Debtor.”
7.1. The Adjudicating Authority also referred to the decision of
this Court in the case of Innoventive Industries Ltd. v. ICICI Bank:
(2018) 1 SCC 407 as regards the scheme of the Code and the
requirements of Section 7 thereof and observed,-
“21…..The rational and reasoning which can be drawn from the
above lines of the citations clearly indicate mainly two aspects
and that is existence of debt and the default which the present
facts of the case clearly demonstrate. So any amount of argument
that deals with issues which are not pertinent and trivial to the
main issues concerned
does not or cannot come in the way of
adjudication of the lis in favour of the Petitioners. The present
facts of the case are fully and comprehensively covered by the
wordings of the above citations.
22. The above discussion clearly shows that there is a debt owed
by the Corporate Debtor in favour of Corporation Bank and
subsequently on assignment of the debts by the said bank to the
Petitioner, the Corporate Debtor is liable to make the payment to
the Petitioner. Further there is ample proof to come to the
conclusion that the Corporate Debtor defaulted in making payment
to Corporation Bank and thereafter to the assignor, the Petitioner
herein.
23. This Adjudicating Authority, on perusal of the documents filed
by the Creditor, is of the view that the Corporate Debtor defaulted
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in repaying the loan availed and also placed the name of the
Insolvency Resolution Professional to act as Interim Resolution
Professional and there being no disciplinary proceedings pending
against the proposed resolution professional, therefore the
Application under sub-section (2) of section 7 is taken as
complete….”
7.2. Accordingly, the Adjudicating Authority (NCLT) admitted the
application for consideration; passed necessary order of moratorium;
and appointed the interim resolution professional.
Previous round of proceedings in appeal
8. Aggrieved by the aforesaid order dated 09.08.2018, the
appellant, erstwhile director of the corporate debtor, approached the
National Company Law Appellate Tribunal in Company Appeal (AT)
(Insolvency) No. 549 of 2018 under Section 61 of the Code, challenging
admission of the application made by the respondent No. 2.
8.1. The appeal so filed by the appellant was considered and
summarily dismissed by the Appellate Tribunal by way of its order dated
17.09.2018. The Appellate Tribunal took note of the contention urged on
behalf of the appellant that a petition under Section 19 of the Act of 1993
was pending before DRT wherein question had been raised as to whether
the amount was payable to the assignee or not. As regards this, the
Appellate Tribunal observed that initiation of CIRP cannot be annulled
merely for pendency of a petition under Section 19 of the Act of 1993;
and in terms
of Section 14 of the Code, all such pending matters cannot
proceed during the period of moratorium.
8.2. It was also contended on behalf of the appellant that there
was no debt payable. After noticing this contention, the Appellate Tribunal
called upon the appellant to file an affidavit that no amount was received
or the amount received had already been paid and therefore, there was
no debt or default. In response, learned counsel for the appellant
expressed inability to file any such affidavit for the reason that the
corporate debtor had indeed availed the loan from the bank/s. After
noticing this stand of the appellant, the Appellate Tribunal felt disinclined
to interfere with the order passed by the Adjudicating Authority and
hence, dismissed the appeal while observing as under:-
“2. Learned counsel appearing on behalf of the Appellant submitted
that a petition under Section 19 of ‘The Recovery of Debts Due
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to Banks and Financial Institutions Act, 1993’ is pending before
Debt Recovery Tribunal, Aurangabad. Wherein question has been
raised is whether the amount is payable to the assignee or not.
3. However, the initiation of Corporate Insolvency Resolution
Process cannot be annulled merely on the ground of pendency of
a petition under Section 19 of ‘The Recovery of Debts Due to
Banks and Financial Institutions Act, 1993’. In fact in terms of
Section 14 of I&B Code all such pending proceeding cannot
proceed during the period of moratorium.
4. Learned counsel appearing on behalf of the Appellant contended
that there is no debt payable. However, when we asked the counsel
to file an addition affidavit signed by the Appellant making specific
statement that they have not received any amount or amount
received has already been paid and therefore there is no debt or
there is no default, it is informed by the counsel for the Appellant
that such affidavit cannot be filed by the Appellant as the Corporate
Debtor had taken loan from the Bank.
5. In view of the aforesaid stand taken by Appellant, we are not
inclined to interfere with the impugned order dated 9th August,
2018. In absence of any merit, the appeal is dismissed. No costs.”
9.  Aggrieved by the aforesaid order dated 17.09.2018, the appellant
approached this Court under Section 62 of the Code in Civil Appeal No.
10710 of 2018, which was considered and decided by way of the order
dated 26.02.2019.
9.1. In the
order dated 26.02.2019, this Court took note of the fact
that in appeal before the Appellate Tribunal, one of the grounds agitated
was that the claim of the respondent was barred by time for, admittedly,
the default was committed on 08.07.2011 whereas the application was
filed in the month of March, 2018.
9.2. After noticing that the principal issue relating to limitation,
though raised by the appellant, was not even decided by the Appellate
Tribunal; and after referring to the decision in B.K. Educational Services
Pvt. Ltd. v. Paras Gupta & Associates: AIR 2018 SC 5601, wherein
it was held that the Limitation Act is applicable to application filed under
Section 7 of the Code, this Court remanded the matter to the Appellate
Tribunal for deciding the issue of limitation with respect to the application
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in question in accordance with law while setting aside the impugned
order dated 17.09.2018 and while granting liberty to the parties to submit
additional affidavit/s in support of their respective contentions. This Court
observed and ordered, inter alia, as under:-
“Although, we find that the ground articulated in the appeal memo
is vague, but, as the objection regarding limitation goes to the root
of the matter and touches upon the jurisdiction of the National
Company Law Tribunal to proceed with the claim of the
respondent; and since the recent decision of this Court in B.K.
Educational Services Pvt. Ltd. Vs. Paras Gupta & Associates –
AIR 2018 SC 5601 has held that the question of limitation is
applicable even the applications filed under Section 7 of the I. &
B. Code, it would be just and necessary to answer the said objection
appropriately, in accordance with law.
Indisputably, neither the National Company Law Tribunal nor the
National Company Law Appellate Tribunal, in the present case,
has examined the said contention. Indeed, according to the
respondent, the plea of claim being barred by limitation is unstatable
and, to buttress this argument, the respondent has relied upon the
entries in the books of account of the appellant and other related
documents. However, that is a matter which ought to be agitated
before the National Company Law Appellate Tribunal in the first
place.
Accordingly, we relegate the
parties before the National Company
Law Appellate Tribunal for fresh consideration of the objection
raised by the appellant that the claim of the respondent is barred
by limitation…..”
The impugned order dated 14.05. 2019 by NCLAT after
remand
10.  In compliance of the aforesaid order of this Court dated
26.02.2019, the Appellate Tribunal (NCLAT) took up the said appeal for
consideration afresh and proceeded to dismiss the same by way of its
impugned order dated 14.05.2019 while holding that the application in
question is not barred by limitation.
10.1. In the introductory paragraphs 1 to 4 of the impugned order
dated 14.05.2019, the Appellate Tribunal referred to the subject matter
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of appeal as also the orders passed in the previous round of proceedings;
and in paragraphs 5 and 6, took note of the rival contentions. Thereafter,
in paragraphs 7 to 14, the Appellate Tribunal took note of the background
facts including those pertaining to the loans taken by the corporate debtor
and creation of securities by way of mortgage of immovable properties
and hypothecation of stock-in-trade and plant and machinery; the
assignment in favour of respondent No. 2 by the lender bank; the loan
having been shown by the corporate debtor in its annual reports; pendency
of the petition under Section 19 of the Act of 1993 for recovery of the
due amount of loan; and a letter dated 31.07.2018 said to have been sent
on behalf of the corporate debtor to the respondent No. 2 for one time
settlement17.
10.1.1. In paragraph 15 of the impugned order, the Appellate
Tribunal referred to the decision of this Court in the case of B. K.
Educational Services (supra) as also Section 238-A of the Code to
notice that law of limitation is applicable to the application under Section
7 of the Code. However, in paragraph 16, the Appellate Tribunal made
the observation that ‘for filing the application under Section 7 of the
I&B Code, Article 132 of Part 2 (other application) is applicable’;
and proceeded to reproduce the said Article 132 of the Limitation Act.18
Thereafter, in paragraphs 17 to 19, the Appellate Tribunal referred to the
frame of Schedule to the Limitation Act
and its Divisions, dealing with
suits, appeals and applications respectively. Coming to the crux of the
matter, in paragraph 20 of the impugned order, the Appellate Tribunal
referred to Article 137 dealing with ‘OTHER APPLICATIONS’, as
occurring in Part II of Third Division of Schedule to the Limitation Act
and reproduced the same while observing that this Article 137 is applicable
to the application/s under Section 7 or Section 9 or Section 10 of the
Code.
10.2. After the aforementioned observations and overview of the
facts and the law applicable, the Appellate Tribunal, in paragraph 21 of
17 ‘OTS’ for short.
18 Such a reference by the  Appellate Tribunal to Article 132 of the Limitation Act
appears to be entirely inapt because that relates to the application to High Court for
certificate of fitness to appeal to this Court and provides for the limitation of sixty
days from the date of decree or order. Be that as it may, the observation with extraction
of Article 132 appears to be a matter of accidental slip; and we would leave the said
Paragraph 16 of the impugned order at that only.
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the impugned order, stated the first reason for its conclusion that the
application in question is not barred by limitation in the manner that the
right to apply under Section 7 of the Code accrued to the respondent
financial creditor only on 01.12.2016 when the Code came into existence.
The Appellate Tribunal said, -
“21. The I&B Code has come into existence on 1st December,
2016 and thereafter the right to apply accrued to respondent –
‘Financial Creditor’ under Section 7 of the I&B code only on 1st
December, 2016. The application having filed in the year 2018,
we hold that the application under Section 7 is not barred by
limitation.”
10.3. Thereafter, in paragraph 22, the Appellate Tribunal extracted
the relevant passages from the decision in Innoventive Industries
(supra) wherein this Court has explained as to how the CIRP is triggered
in the scheme of IBC; and has underscored the requirement of existence
of “default” on the part of the corporate debtor wherefor and whereby
a financial creditor could maintain an action under Section 7 of the Code
as also the essential elements of the process of such an action, including
the form and manner of moving the application in conformity with the
Rules of 2016 and initial enquiry by the Adjudicating Authority on the
question as to whether a default has occurred. Then, in paragraph 23 of
the impugned order, the Appellate Tribunal also took note that in
Innoventive
Industries, this Court has further held that during such
consideration by the Adjudicating Authority, the corporate debtor is entitled
to point out that default has not occurred in the sense that the “debt” is
not due; and that a debt ‘may not be due if it is not payable in law or
in fact’.
10.4. Thereafter, in paragraph 24, the Appellate Tribunal, with
reference to its own decision in Company Appeal (AT) (Insolvency)
No. 82 of 2018: Binani Industries Ltd. v. Bank of Baroda and Anr.,
observed that the Code does not relate to litigation nor the proceedings
were of suit or money suit; and the period of limitation prescribed in First
Division of the Limitation Act is not applicable to the proceedings under
the Code. However, thereafter in paragraph 25 of the impugned order,
the Appellate Tribunal observed that though the law of limitation as
prescribed in First Division, Second Division and Part I of Third Division
of the Schedule to the Limitation Act is not applicable, the corporate
debtor could take a plea that “debt” is not due, as it is not payable in law
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being barred by limitation. These paragraphs 24 and 25 of the impugned
order read as under: -
“24. In ‘Binani Industries Ltd. vs. Bank of Baroda & Anr.’ –
Company Appeal (AT) (Insolvency) NO. 82 of 2018’ this
Appellate Tribunal held that ‘Insolvency & Bankruptcy Code’ does
not relate to litigation nor it is a suit or money suit.  In that
background the period of limitation prescribed in the First Division
is not applicable through I&B Code proceedings.
25. Though we have held that the law of limitation for filing a suit
(First Division) or Appeals (Second Division) or application under
Part I (Third division) are not applicable, the ‘Corporate Debtor’
can take a plea that ‘debt’ is not due, as it is not payable in law
being barred by limitation.”
10.5. After the aforementioned observations, the Appellate Tribunal
indicated the question to be examined in the matter in paragraph 26 and
proceeded to decide the same in the ensuing paragraphs. In paragraphs
27 and 28 of the impugned order, the Appellate Tribunal referred to the
undisputed fact that the financial creditor had already filed a petition
under Section 19 of the Act of 1993 that was pending; and also observed
that the appellant has suppressed the fact that on 31.07.2018, the
corporate debtor approached the financial creditor for one time settlement.
After these observations, the Appellate Tribunal referred to the facts
that nine properties of the corporate debtor had been mortgaged with
the
financial creditor and that the financial creditor had adopted the
proceedings for enforcement of mortgage security and had recovered
possession pursuant to the order passed by DRT. Having thus referred
to the other proceedings and particularly the enforcement of mortgage
security, the Appellate Tribunal referred to the limitation period of twelve
years for recovery of possession of mortgaged property as per Article
61(b) of the Limitation Act in paragraphs 29 and 30 and concluded that
the property having been mortgaged, the claim is not barred by limitation
as the period of limitation is twelve years with regard to the mortgaged
property. These considerations, observations and findings led the Appellate
Tribunal to hold and conclude in paragraph 31 of the impugned order
that the application under Section 7 of the Code is not barred by limitation.
These paragraphs 26 to 31 of the impugned order read as under:-
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“26. In the present case, it is to be noticed whether the ‘debt’ is
not payable in law by the ‘Corporate Debtor’ and/or the ‘default’
being barred by limitation.
27. We have noticed that immediately on ‘default’, Respondent
No. 2 – ‘Financial Creditor’ has already moved before the DRT
under Section 19 of the ‘The Recovery of Debts Due to the Banks
and Financial Institution Act, 1993’ and O.A. No. 172 of 2017
which is still pending. This fact has also been accepted and pleaded
by the Appellant.
28. The Appellant has suppressed the fact that recently the
‘Corporate Debtor’ by letter dated 31st July, 2018 approached
Respondent No. 2 (Financial Creditor) for one time settlement.
There is a finding that there is a continuous cause of action. The
appellant has not disputed that 9 properties i.e. land and building
have been mortgaged by the ‘Corporate Debtor’ with Respondent
No. 2 - ‘Financial Creditor’. Respondent No. 2 also preferred a
criminal proceeding on 27th June, 2017 as the enforcement
mortgage of which possession was taken by 2nd Respondent after
the order passed by the DRT, Aurangabad.
29. Part V (First Division) of Limitation Act relates to ‘Suits relating
to immovable property’ to recover possession of the property
mortgaged and afterwards transferred by the mortgagee for a
valuable consideration. The period of limitation is 12 years since
the transfer becomes known to the plaintiff [Article 61(b)].
30. In view
of the aforesaid position of law, the property having
mortgaged, we also hold that the claim is not barred by limitation
as the period of limitation is 12 years with regard to mortgaged
property and in terms of Section 5 (7) read with Section 5(8) as
the property is mortgaged, Respondent No. 2 also comes within
the meaning of ‘Financial Creditor’.
31. Therefore, we hold that the application under Section 7 is not
barred by limitation nor the claim of Respondent No. 2 is barred
by limitation. We reject the plea that no ‘debt’ is payable by the
‘Corporate Debtor’ in the eyes of law. We find no merit in this
appeal. It is accordingly dismissed. No costs”
11. For what has been noticed hereinabove, it could be reasonably
deciphered that the Appellate Tribunal has rejected the plea of bar of
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limitation essentially on two major considerations: One, that the right to
apply under Section 7 of the Code accrued to the respondent financial
creditor only on 01.12.2016 when the Code came into force19; and second,
that the period of limitation for recovery of possession of the mortgaged
property is twelve years20. Noticeably, though the Appellate Tribunal
has referred to the pendency of the application under Section 19 of the
Act of 1993 as also the fact that corporate debtor had made a prayer for
OTS in the month of July, 2018 but, has not recorded any specific finding
about the effect of these factors.
Broad features of rival submissions
12. Assailing the orders so passed by NCLAT and asserting that
the application made by the respondent No. 2 is barred by limitation, the
erstwhile director of the corporate debtor has preferred this appeal which
has been duly opposed by the applicant financial creditor (respondent
No. 2) as also the IRP for the corporate debtor (respondent No. 1). The
broad features and substance of the rival submissions could be noticed
as infra.
The Appellant
13. The learned senior counsel for the appellant has contended
that in the impugned order dated 14.05.2019, the NCLAT has failed to
apply the law declared by this Court in a series of decisions to the effect
that for an application under Section 7 of the Code, Article 137 of
Limitation Act is applicable and not Article 61 (b); and the limitation for
such an application is
three years from the date of the alleged default.
According to the learned senior counsel, neither Article 61 (b) of Limitation
Act applies nor even Section 18 thereof and, therefore, on the admitted
date of default as stated by the respondent No. 2, the application in
question remains hopelessly barred by limitation.
13.1. The learned senior counsel has elaborated on the submissions
with reference to the decision of this Court in the case of B.K.
Educational Services (supra) and has contended that therein, it is
categorically held that Article 137 of the Limitation Act applies to the
application under Section 7 of the Code and hence, the limitation period
is of three years, which is to be counted from the date of default.
19 Paragraph 21 of the impugned order ibid.
20 Paragraphs 29 and 30 of the impugned order ibid.
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13.2. With reference to the process envisaged by the Code and
the Rules of 2016, where the financial creditor is required to mention the
date of default in the application and also to adduce evidence of default,
the learned senior counsel has argued that in the application under
consideration, which was filed on 21.03.2018, the respondent No. 2
mentioned the date of default as 08.07.2011 and, for the evidence of
default, only the documents pertaining to the NPA were attached i.e.,
until the year 2011. Hence, according to the learned counsel, on the
averments as taken and evidence as adduced, the application so filed by
the respondent No. 2 is clearly barred by limitation and deserves to be
rejected outright.
13.3. The learned senior counsel has further referred to the
decision in K. Sashidhar v. Indian Overseas Bank: 2019 SCC Online
SC 25721 and has submitted that therein, this Court has reaffirmed the
position that right to sue under the Code accrues on the date when default
occurs and if the default had occurred three years prior to the date of
filing of the  application, the same would not amount to debt due and
payable under the Code. The learned counsel has yet further submitted
that in Civil Appeal No. 11020 of 2018: Vashdeo R. Bhojwani  v.
Abhyudaya Co-operative Bank Ltd. & Anr.22, where default had
occurred in the year 2001 when the Recovery Certificate was issued
and the NCLT and NCLAT held that the claim
was not time-barred for
the cause of action being a continuing one, this Court has held that there
was no doubt that the claim was due and payable, but the same was
barred by limitation as applicable under IBC. Proceeding further, the
learned senior counsel has referred to the decision rendered by a three-
Judge Bench of this Court in Civil Appeal No. 4952 of 2019: Gaurav
Hargovindbhai  Dave  v. Asset Reconstruction Company (India)
Ltd. & Anr.23 to submit that therein, it is specifically held that the
application under Section 7 of IBC would fall within the purview of
Article 137 of the Limitation Act and the time of three years begins to
run from the date of default and no new life would be given to the time-
barred debts. The learned senior counsel has also referred to the order
of NCLAT dated 02.05.2019 in Company Appeal (AT)(Insolvency) No.
655 of 2018, which was in challenge before this Court in Gaurav
Hargovindbhai Dave (supra), to point out that NCLAT had taken the
21 Now reported in (2019) 12 SCC 150
22 Now reported in (2019) 9 SCC 158
23 Now reported in (2019) 10 SCC 572
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application under Section 7 of IBC to be within limitation also because
of OTS offers made by the corporate debtor to the financial creditor and
even this proposition did not meet with approval of this Court. The learned
counsel would submit that in Vashdeo R.Bhojwani (supra), this Court
has taken the date of default to be that of issuance of Recovery Certificate
and in Gaurav Hargovindbai Dave (supra), this Court has taken the
date of NPA to be the date of default; and this Court has construed the
date of default to be the one when the debt became due and payable
strictly as per Section 3(12) of IBC whereunder, default means  ‘non-
payment of debt when whole or any part of instalment of the amount
of debt has become due and payable and is not paid by the debtor
or the corporate debtor, as the case may be.’
13.4. The learned senior counsel has further submitted that the
reasonings adopted by NCLAT stand thoroughly disapproved by this
Court in the decisions above-referred as also that in Civil Appeal No.
7673 of 2019: Sagar Sharma & Anr. v. Phoenix Arc Pvt. Ltd. &
Anr.24 and, therefore, the impugned order cannot be sustained from any
angle.
13.5. The learned senior counsel has yet further referred to the
three-Judge Bench decision in the case of Jignesh Shah and Anr. v.
Union of India and Anr. : 2019 SCC Online 125425 and has submitted
that therein too, this Court has analysed in detail the applicability of the
Limitation Act to the applications of winding
up being transferred to
NCLT and has held that enforcement of IBC in 2016 will not give a new
life to the time-barred debts; and if the application is filed beyond three
years from the date of default, then the same will be barred by time.
13.6. The learned senior counsel has argued that the debt shown
in the balance sheet does not revive the limitation period of three years
as applicable to the IBC under Article 137 of the Limitation Act for the
reasons that the debt as shown in the balance sheet is not covered by
Section 18 of the Limitation Act;  and even otherwise, Section 18 of the
Limitation Act cannot revive the “default” relevant for IBC and could
only revive limitation with respect to the cause of action. The learned
senior counsel has emphasised on the submissions that Section 18 of the
Limitation Act could revive limitation in some cases but not for every
remedy which is separate and distinct; and when limitation period of
24 Now reported in (2019) 10 SCC 353
25 Now reported in (2019) 10 SCC 750
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three years under Article 137 of the Limitation Act, in relation to the
application under Section 7 of the Code, starts from the date of default,
acknowledgment of the debt in the balance sheet will not give any fresh
date of default because default occurs only once and cannot be continuing.
The learned counsel has also submitted that the NCLAT has wrongly
relied on the alleged proposal for OTS which was never filed before
NCLT and also was denied by the appellant herein; and in any case, the
proposal for OTS, if at all made on 31.07.2018, cannot revive the date of
default as per declaration of NPA on 08.07.2011 nor does it attract Section
18 of the Limitation Act.
13.7. As regards relevant considerations and approach, the learned
senior counsel for the appellant has submitted, with reference to
paragraph 64 of the decision in Swiss Ribbons Private Limited and
Anr.  v. Union of India and Ors.: (2019) 4 SCC 17, that the legislative
policy has moved from “cause of action” to determination of “default”
and in the present case, default having occurred when the account became
NPA as on 08.07.2011, the application remains barred by limitation.
Respondent No. 2
14. Per contra, the learned senior counsel appearing for the
financial creditor (respondent No. 2) has contended that this appeal is
devoid of substance and is liable to be dismissed on merits as also on
conduct of the appellant.
14.1. The learned senior counsel
would maintain that the debt of
the corporate debtor, payable to the respondent No. 2, has neither been
disputed nor denied by the appellant; rather it is stated in ground P in the
memo of appeal (page 36 of paper-book) that the corporate debtor is
and has always been willing to settle the amount of outstanding loan in
one time settlement with the respondent No. 2. The learned counsel
would submit that the late attempt on the part of the appellant to dispute
the OTS letter issued by the respondent No. 1 is baseless and fallacious
because such a contention has been raised for the first time in this second
round of appeal in this Court; and that the appellant is rather guilty of
taking false pleadings and of perjury in his attempts to mislead.
14.2. While refuting the submissions made on behalf of the
appellant, it has been strenuously argued by the learned senior counsel
for the respondent No. 2 that the application under Section 7 of the
Code is not barred by limitation only because of initial date of default
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being mentioned therein as 08.07.2011. The learned counsel would submit
that the contentions on behalf of the appellant are unsustainable since
the debt in question had been legally and unequivocally admitted to be
due and payable in writing by the respondent No. 1 all throughout from
the year 2011 until 2017 in its balance sheets filed along with annual
returns before the Registrar of Companies; and the debt had been shown
as the loan amount outstanding to Corporation Bank, who had assigned
the same to the respondent No. 2.
14.3. While heavily relying on the observations in Jignesh Shah
(supra), learned senior counsel has contended that as per the law declared
by this Court, the provisions of Section 18 of the Limitation Act certainly
extend the period of limitation under the Code on any acknowledgment
of debt by the corporate debtor. The learned counsel has referred to the
provisions of the Companies Act, 201326, particularly Section 95 thereof,
as also to the  observations of this Court in M/s. Mahabir Cold Storage
v. CIT, Patna: 1991 Supp (1) SCC 402 to submit that the registers of
a company are of prima facie evidence; and the balance sheet disclosing
loans and borrowings and forming part of annual returns, indeed constitute
the admission and acknowledgment of the corporate debtor of its
indebtedness. Therefore, according to the learned counsel, the loan
amount acknowledged to be due and payable by the corporate debtor in
the balance sheets and
annual reports, continuously from the year 2011
and until the year 2017, becomes an admitted fact of evidence and thereby,
the period of limitation is extended by dint of applicability of Section 18
of the Limitation Act.
14.4. The learned senior counsel has re-emphasised on the
submissions that the suggestions of the appellant, that no extension of
limitation period under Section 18 of the Limitation Act is permissible in
the Code because date of default is sacrosanct and only three years
period from that date is permissible, remain untenable in law. The learned
counsel has contended that at the time of filing such application by the
respondent No. 2, there was no provision in the Code importing any
defined period of limitation and neither there was any mandatory legal
requirement of stating in the application format as to how the claim was
within limitation nor there was any statutory requirement to furnish any
specific evidence thereof and therefore, the Section 7 application as
26 Hereinafter also referred to as ‘the Companies Act’.
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framed and filed by respondent No. 2 was well within the period of
limitation.
14.5. As regards the requisite approach in applying the law of
limitation to the application under Section 7 of the Code,  the learned
senior counsel has strenuously argued that the amendment applying the
provisions of the Limitation Act to the Code came into force with effect
from 06.06.2018 but only after filing of the application by respondent
No. 2; and testing a post facto applicable statutory provision of
retrospective nature in a watertight stringent manner would result in a
fatal flaw in equity and the same may also prejudice scores of legal
recourse by many other banks and financial institutions currently in Courts/
Tribunals on mere technicality that was unforeseen and unconceived in
past and hence, the documents making out a case for extension of
limitation period could not be filed. Other way round, according to the
learned counsel, the unrestrained applicability of Section 238-A of the
Code in an anomalous manner suggested on behalf of the appellant would
compel all the financial institutions to immediately proceed and file the
application under Section 7 before the expiry of three years exactly
from the date of default, in spite of the fact that any borrower, in order to
overcome its financial constraints to repay might be ready and willing to
comply with the requirements of Section 18 of the Limitation Act for
extension of
period of limitation. The learned counsel has relied on the
decision of this Court in N.Balakrishnan  v. Krishnamurthy : (1998)
7 SCC 123 to submit that the rules of limitation are not meant to destroy
the rights of the parties.
14.6. The learned senior counsel has, therefore, submitted that
the application filed by respondent No. 2 under Section 7 of the Code as
financial creditor is within the period of limitation as prescribed and as
extended legally by application of the relevant provisions of the Limitation
Act. Thus, according to the learned counsel, the application has rightly
been admitted by NCLT and the present appeal deserves to be dismissed.
Respondent No. 1
15. The learned counsel appearing for the IRP (respondent No.
1) has more or less argued on the same lines and has submitted that the
application in question is well within the period of limitation when examined
in the light of the applicable provisions of the Code and the Limitation
Act.
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15.1. According to the learned counsel, the application filed by
the respondent No. 2 remains within limitation for the reasons: (a) that
the liability of loan is long standing and same is recorded in the balance
sheets of corporate debtor for the Financial Years 2011-12, 2012-13,
2013-14, 2014-15, 2015-16 and 2016-17; (b) that by way of letter dated
31.07.2018, request for OTS was made on behalf of the corporate debtor;
and (c) OA No. 172/2013 was filed before DRT well within the stipulated
time period and the same is still pending. It has been contended that in
view of these indisputable facts, the claim of the financial creditor cannot
be said to be dead or stale claim and hence, is not barred by limitation,
particularly when the financial creditor has been availing of another civil
remedy available to it and had filed the application under Section 19 of
the Act of 1993 well within limitation.
15.2. The learned counsel has further contended that the impugned
order of NCLAT is correct on facts and is in consonance with the intent
and spirit of law laid down by this Court in B.K.Educational Services
(supra) that the claim of the creditor should not be a dead or a stale
claim. The learned counsel has further contended that mere date of
default or date of classification of an account as NPA does not put a full
stop on ‘further cause of action’ or ‘continuing cause of action’ available
to the financial creditor. The learned counsel would submit that on the
settled principle of law, the interpretation of statute should always be in
furtherance to its objective and to give effect to the intent of legislature;
and if, for the sake of arguments, the contention of the appellant is
accepted that an application under Section 7 of IBC could be filed only
within three years from the date of NPA, it would frustrate the objective
of IBC to restructure the stressed assets and ensure maximisation of
the value of stressed assets.
15.3. The learned counsel has again relied on Section 18 of the
Limitation Act and the aforesaid decisions in Jignesh Shah and
Mahaveer Cold Storage to submit that the contention of the appellant
that cause of action arose in 2011 and right to sue started ticking in the
said year is baseless, as the corporate debtor had continuously admitted
its liability in its audited balance sheets until the year 2017 and further
admitted its liability with an offer for OTS. Therefore, according to the
learned counsel, the contention that the debt is barred by limitation cannot
be taken by the corporate debtor in the given facts and circumstances
besides that such a contention is contrary to the undisputed facts and
admission of liability.
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15.4. The learned counsel for the respondent No. 1 has also
attempted to refer to the proceedings already undertaken in this matter
pursuant to the order of admission by NCLT, including the meetings of,
and resolutions by, CoC; and consequent moving of application by IRP
before NCLT for liquidation of the corporate debtor before passing of
the interim order in this appeal.
16. In distillation of what has been noticed hereinabove, it is
apparent that while not disputing the basics on the applicability of law of
limitation to the application in question, the main plank of submissions of
the learned counsel for respondents has been that the applicability of
Section 18 of the Limitation Act, providing for extension of the period of
limitation upon making of acknowledgment by the party against whom a
right is claimed, is not taken away and, for such acknowledgments (of
liability) having been consistently and continuously made in the balance
sheets and annual reports by the corporate debtor as also in its offer for
OTS, the fresh period of limitation would be available from the date of
every such acknowledgment. Hence, with heavy reliance on the principles
relating to “acknowledgment” under Section 18 of the Limitation Act,
the learned counsel for the respondents would assert that the application
in question is not barred by limitation. On the other hand, the gravamen
of submissions on behalf of the appellant has been that
looking to the
scheme of the Code and the decisions of this Court, the application in
question is governed by Article 137 of the Limitation Act; that three
years’ time period prescribed therein commences from the date of default;
and that acknowledgment of debt in the balance sheet or annual report
does not give any fresh period of limitation because default occurs only
once and does not furnish a continuing right to apply.
16.1. Apart from the aforesaid, as noticed, the Appellate Tribunal
has concluded in favour of the respondents for different reasons viz.,
that the right to apply under Section 7 of the Code accrued only on
01.12.2016 when the Code came into force and hence, the application
filed by the financial creditor in the year 2018 is not barred by limitation;
and that the period of limitation is twelve years for recovery of possession
of the mortgaged property and, therefore, the claim is not barred by
limitation.
The relevant provisions of the Code and the Limitation Act
17. For determination of the core issue as to whether the application
made by respondent No. 2 before NCLAT under Section 7 of the Code
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is within limitation and for dealing with the submissions made by the
respective learned counsel as also the reasonings adopted by the Appellate
Tribunal, at the first it would be appropriate to take note of the relevant
statutory provisions in the Insolvency and Bankruptcy Code, 2016 and
the Limitation Act, 1963.
17.1. The expressions generally used in the Insolvency and
Bankruptcy Code, 2016 are defined in Section 3 thereof. The relevant
definitions occurring in Section 3 of the Code are as under: -
“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;
(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 [paid]27 by the debtor or the corporate debtor,
as the case may be;
****
****
****
27 The expression in parenthesis was substituted for “repaid” by Amendment Act No.
26 of 2018 with retrospective effect from 06.06.2018.
BABULAL VARDHARJI GURJAR v. VEER GURJAR ALUMINIUM
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(30): “secured creditor” means a creditor in favour of whom
security interest is created;
****
****
****”
17.2. Part II of the Code deals with insolvency resolution and
liquidation of corporate persons and the extent of application of this Part
II is specified in Section 4 that reads as under:-
“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.”
17.3. The expressions employed in Part II of the Code are defined
in Section 5 thereof. The relevant definitions are as under:-
“5. Definitions.—In this Part, unless the context otherwise
requires,—
****
****
****
(6) “dispute” includes a suit or arbitration proceedings relating
(a) the existence of the amount of debt;
(b) the quality of goods or service; or
(c) the breach of a representation or warranty;
(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;
****
****
****”
17.4. The provisions relating to initiation of CIRP, with which we
are primarily concerned in this matter, are contained in Section 7 of the
Code and read as under:-
“7. Initiation of corporate insolvency
resolution process
by financial creditor.— (1) A financial creditor either by itself
or jointly with [other financial creditors, or any other person on
behalf of the financial creditor, as may be notified by the Central
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Government,]28 may file an application for initiating corporate
insolvency resolution process against a corporate debtor before
the Adjudicating Authority when a default has occurred.
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
(c) any other information as may be specified by the Board.
(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).
(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
28 The expressions in parenthesis were substituted for “other financial creditors” by
Amendment Act No. 26 of 2018 with retrospec tive effect from 06.06.2018.
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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.”
17.5. Section 238-A, inserted in the Code by way Amendment
Act No. 26 of 2018, is deemed to have come into effect from 06.06.2018.
This Section 238-A, being directly relevant for the present purpose, could
also be usefully reproduced as under:-
“238-A. Limitation. - The provisions of the Limitation Act, 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.”
17.6. Section 18 of the Limitation Act, providing for the extension
of period of limitation on acknowledgment of the liability, which is strongly
relied upon by the respondents, reads as under:-
“18. Effect of acknowledgment in writing. —
(1) Where, before the expiration of the prescribed period for a
suit or
application in respect of any property or right, an
acknowledgment of liability in respect of such property or right
has been made in writing signed by the party against whom such
property or right is claimed, or by any person through whom he
derives his title or liability, a fresh period of limitation shall be
computed from the time when the acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is undated,
oral evidence may be given of the time when it was signed; but
subject to the provisions of the Indian Evidence Act, 1872 (1 of
1872), oral evidence of its contents shall not be received.
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Explanation.—For the purposes of this section,—
(a)
an acknowledgment may be sufficient though it omits to
specify the exact nature of the property or right, or avers
that the time for payment, delivery, performance or
enjoyment has not yet come or is accompanied by a
refusal to pay, deliver, perform or permit to enjoy, or is
coupled with a claim to set-off, or is addressed to a person
other than a person entitled to the property or right;
(b)
the word “signed” means signed either personally or by
an agent duly authorised in this behalf; and
(c)
an application for the execution of a decree or order
shall not be deemed to be an application in respect of
any property or right.”
17.7. As regards the period of limitation for the application in
question, Article 137, as contained in Part II of Third Division of the
Schedule to the Limitation Act (relating to the applications not otherwise
provided for), shall have bearing in the matter and may be taken note of
as under29
29It may be usefully observed that the Appellate Tribunal has referred to Article 61(b)
of the Limitation Act that relates to suits on mortgages. As shall be noticed hereafter
later, such a reference does not fit in the issue at hand from any angle. However, we may
extract Articles 61(b) and 62 of the Limitation, just for the sake of reference, as under:-
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The relevant basics of the Insolvency and Bankruptcy
Code, 2016
18. Now, a brief insight into the expositions of this Court on the
reasons, purport, meaning and effect of the provisions of IBC and changes
brought about by it to the then existing law, particularly those having
bearing on the questions at hand, shall be useful.
18.1. As noticed from Preamble, the Code came to be enacted to
consolidate and amend the laws relating to reorganisation and insolvency
resolution of corporate persons and even of partnership firms and
individuals in a time bound manner; the objectives, inter alia, being for
maximisation of value of assets of such persons and balance of interest
of all the stakeholders.30
18.2. One of the earliest decisions, wherein this Court dealt with
the provisions of IBC in sufficient detail while explaining the raison
d’être for this enactment and a paradigm shift in law, had been in the
case of Innoventive Industries (supra) that was decided on 31.08.2017.
Therein, this Court, inter alia, pointed out that ‘one of the important
objectives of the Code is to bring the insolvency law in India under
a single unified umbrella with the object of speeding up of the
insolvency process’.
18.2.1. In the case of Innoventive Industries, this Court was
essentially concerned with the question as to whether the proceedings
under IBC could be stalled where there was a moratorium to the company
concerned under the
Maharashtra Relief Undertakings (Special
Provisions) Act, 1958. Amongst other aspects, this Court ruled, with
reference to the non obstante clause contained in Section 238 of the
Code that the same being of Parliamentary enactment, would prevail
over the limited non obstante clause of the State enactment; and thus,
30 As observed by this Court in  Civil Appeal Nos.  8512-8527 of 2019 etc.:  Anuj Jain
v. Axis Bank Limited and Ors., decided on 26.02.2020.
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the Maharashtra Act cannot stand in the way of Corporate Insolvency
Resolution Process under the Code31. During the course of an extensive
examination of the relevant provisions, this Court also analysed the scheme
of Corporate Insolvency Resolution Process under the Code and, in
relation to the initiation of such CIRP by the financial creditor, exposited
as follows: -
“27. The scheme of the Code is to ensure that when a default
takes place, in the sense that a debt becomes due and is
not paid, the insolvency resolution process begins. Default
is defined in Section 3(12) in very wide terms as meaning non-
payment of a debt once it becomes due and payable, which
includes non-payment of even part thereof or an instalment amount.
For the meaning of “debt”, we have to go to Section 3(11), which
in turn tells us that a debt means a liability of obligation in respect
of a “claim” and for the meaning of “claim”, we have to go back
to Section 3(6) which defines “claim” to mean a right to payment
even if it is disputed. The Code gets triggered the moment
default is of rupees one lakh or more (Section 4). The
corporate insolvency resolution process may be triggered by the
corporate debtor itself or a financial creditor or operational creditor.
A distinction is made by the Code between debts owed to financial
creditors and operational creditors. A financial creditor has been
defined under Section 5(7) as a person to whom a financial debt
is owed and a financial debt
is defined in Section 5(8) to mean a
debt which is disbursed against consideration for the time value
of money. As opposed to this, an operational creditor means a
person to whom an operational debt is owed and an operational
debt under Section 5(21) means a claim in respect of provision of
goods or services.
28. When it comes to a financial creditor triggering the process,
Section 7 becomes relevant. Under the Explanation to Section
7(1), a default is in respect of a financial debt owed to any financial
creditor of the corporate debtor — it need not be a debt owed to
31Section 238 of the Code reads as under: -
238. Provisions of this Code to override other laws.—The provisions of this Code
shall have effect, notwithstanding anything inconsistent therewith contained in any
other law for the time being in force or any instrument having effect by virtue of any
such law.”
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the applicant financial creditor. Under Section 7(2), an application
is to be made under sub-section (1) in such form and manner as is
prescribed, which takes us to the Insolvency and Bankruptcy
(Application to Adjudicating Authority) Rules, 2016. Under Rule
4, the application is made by a financial creditor in Form 1
accompanied by documents and records required therein. Form 1
is a detailed form in 5 parts, which requires particulars of the
applicant in Part I, particulars of the corporate debtor in Part II,
particulars of the proposed interim resolution professional in Part
III, particulars of the financial debt in Part IV and documents,
records and evidence of default in Part V. Under Rule 4(3), the
applicant is to dispatch a copy of the application filed with the
adjudicating authority by registered post or speed post to the
registered office of the corporate debtor. The speed, within which
the adjudicating authority is to ascertain the existence of a default
from the records of the information utility or on the basis of evidence
furnished by the financial creditor, is important. This it must do
within 14 days of the receipt of the application. It is at the stage
of Section 7(5), where the adjudicating authority is to be
satisfied that a default has occurred, that the corporate
debtor is entitled to point out that a default has not occurred
in the sense that the “debt”, which may also include a
disputed claim,
is not due. A debt may not be due if it is not
payable in law or in fact. The moment the adjudicating authority
is satisfied that a default has occurred, the application must be
admitted unless it is incomplete, in which case it may give notice
to the applicant to rectify the defect within 7 days of receipt of a
notice from the adjudicating authority. Under sub-section (7), the
adjudicating authority shall then communicate the order passed to
the financial creditor and corporate debtor within 7 days of
admission or rejection of such application, as the case may be.”
(emphasis in bold supplied)
18.3. The other decision in which this Court again traversed through
the historical background and scheme of the Code had been in the wake
of challenge to the constitutional validity of various of its provisions in
the case of Swiss Ribbons (supra), decided on 25.01.2019.
18.3.1. In Swiss Ribbons, while upholding the constitutional validity
of IBC, this Court took note, inter alia, of the pre-existing state of law
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as also the objects and reasons for enactment of the Code; and while
observing that the focus of the Code was to ensure revival and
continuation of the corporate debtor, where liquidation is to be availed of
only as a last resort, this Court pointed out that on its scheme and
framework, the Code was a beneficial legislation to put the corporate
debtor on its feet, and not a mere recovery legislation for the creditors.
This Court said, -
“27. As is discernible, the Preamble gives an insight into what is
sought to be achieved by the Code. The Code is first and foremost,
a Code for reorganisation and insolvency resolution of corporate
debtors. Unless such reorganisation is effected in a time-bound
manner, the value of the assets of such persons will deplete.
Therefore, maximisation of value of the assets of such persons so
that they are efficiently run as going concerns is another very
important objective of the Code. This, in turn, will promote
entrepreneurship as the persons in management of the corporate
debtor are removed and replaced by entrepreneurs. When,
therefore, a resolution plan takes off and the corporate debtor is
brought back into the economic mainstream, it is able to repay its
debts, which, in turn, enhances the viability of credit in the hands
of banks and financial institutions. Above all, ultimately, the
interests of all stakeholders are looked after as the corporate debtor
itself becomes a beneficiary of the resolution scheme—workers
are
paid, the creditors in the long run will be repaid in full, and
shareholders/investors are able to maximise their investment.
Timely resolution of a corporate debtor who is in the red, by an
effective legal framework, would go a long way to support the
development of credit markets. Since more investment can be
made with funds that have come back into the economy, business
then eases up, which leads, overall, to higher economic growth
and development of the Indian economy. What is interesting to
note is that the Preamble does not, in any manner, refer to
liquidation, which is only availed of as a last resort if there is
either no resolution plan or the resolution plans submitted are not
up to the mark. Even in liquidation, the liquidator can sell the
business of the corporate debtor as a going concern. (See
ArcelorMittal32 at para 83, fn 3).
32ArcelorMittal India (P) Ltd. v. Satish Kumar Gupta & Ors : (2019) 2 SCC 1
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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, 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.”
(emphasis in bold supplied)
18.3.2. In Swiss Ribbons, this Court again explained the
connotations as also contours of the provisions relating to initiation of
CIRP by the financial creditor in the following passage:-
“64. The trigger for a financial
creditor’s application is non-
payment of dues when they arise under loan agreements. It is for
this reason that Section 433(e) of the Companies Act, 1956 has
been repealed by the Code and a change in approach has been
brought about. Legislative policy now is to move away from
the concept of “inability to pay debts” to “determination of
default”. The said shift enables the financial creditor to prove,
based upon solid documentary evidence, that there was an obligation
to pay the debt and that the debtor has failed in such obligation….”
(emphasis in bold supplied)
19. The expositions abovementioned make it clear that the
Insolvency and Bankruptcy Code, 2016 has been enacted to consolidate
and amend the laws relating to reorganisation and insolvency resolution
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of corporate persons and other entrepreneurs in a time bound manner so
as to ensure maximisation of value of assets of such persons and to
balance the interest of all the stakeholders. As regards corporate debtor,
the primary focus of the Code is to ensure its revival and continuation by
protecting it from its own management and, as far as feasible, to save it
from liquidation. As tersely put by this Court in Swiss Ribbons (supra),
the Code is thus a beneficial legislation which puts the corporate
debtor back on its feet, not being a mere recovery legislation for
creditors.
19.1. When the Corporate Insolvency Resolution Process is
understood on the anvil of the aforementioned fundamentals on the spirit
and intent of IBC, it is also evident that such a process is not intended to
be adversarial to the corporate debtor but is essentially to protect its
interests.
19.2. In relation to a financial creditor, the trigger for CIRP is
default by the corporate debtor of rupees one lakh or more against the
debt/s. When seeking initiation of CIRP qua a corporate debtor, the
financial creditor is required to make the application in conformity with
the requirements of Section 7 of the Code while divulging the necessary
information and evidence, as required by the Rules of 2016. After
completion of all other requirements, for admitting such an application of
the financial creditor, the Adjudicating Authority has to be satisfied, as
per sub-section (5) of Section 7 of
the Code, that “default” has occurred
and, in this process of consideration by the Adjudicating Authority, the
corporate debtor is entitled to point out that default has not occurred in
the sense that the “debt”, which may also include a disputed claim, is not
due. A debt may not be due if it is not payable in law or in fact. As
observed by this Court, the legislative policy now is to move away
from the concept of “inability to pay debts” to “determination of
default”.
Operation of law of limitation over IBC proceedings
20. Having taken note of the rudiments that the Code is a beneficial
legislation intended to put the corporate debtor on its feet and it is not a
mere money recovery legislation for the creditors; and having also noticed
that CIRP is not intended to be adversarial to the corporate debtor but is
essentially to protect its interests and that CIRP has its genesis in default
on the part of the corporate debtor, we may now examine the operation
of law of limitation over the proceedings under the Code.
BABULAL VARDHARJI GURJAR v. VEER GURJAR ALUMINIUM
INDUSTRIES PVT. LTD. [DINESH MAHESHWARI, J.]
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21. Section 238-A, providing that the provisions of the Limitation
Act, 1963 shall, as far as may be, apply to the proceedings or appeals,
inter alia, before the Adjudicating Authority (NCLT) or the Appellate
Tribunal (NCLAT), was not available in the Code when this Court
delivered the decision in Innoventive Industries (supra) on 31.08.2017.
However, this Court explained the scheme of the Code and nuances of
CIRP by the financial creditor under Section 7, particularly as to when
the process of insolvency resolution begins, the trigger moment being
the default of rupees one lakh or more; and the requirement on the
Adjudicating Authority to reach to the satisfaction that the required default
has occurred. It appears that even when the applicable principles in
relation to CIRP by the financial creditor were explained by this Court in
Innoventive Industries (supra), the question of applicability of the
Limitation Act to the Code remained a matter of debate in various
decisions of NCLT and NCLAT. Such a debate and the doubts generated
thereby were dealt with by the Insolvency Law Committee who, in its
report made in the month of March, 2018, recommended for introduction
of the requisite provision in the Code so as to leave no room of doubt
that the Limitation Act indeed applies to the proceedings under the Code.
This ultimately led to the insertion of the said Section 238-A into the
Code with retrospective effect from
06.06.2018. However, the validity
of this Section 238-A was also questioned before this Court and this
culminated into the elaborate decision of this Court in the case of B.K.
Educational Services (supra) that was rendered on 11.10.2018.
22. In B.K. Educational Services (supra), while upholding the
validity of Section 238-A of the Code, this Court took note of the said
report of the Insolvency Law Committee and observed as under:-
“11. Having heard the learned counsel for both sides, it is important
to first set out the reason for the introduction of Section 238-A
into the Code. This is to be found in the Report of the Insolvency
Law Committee of March 2018, as follows:
“28. APPLICATION OF LIMITATION ACT, 1963
28.1. The question of applicability of the Limitation Act, 1963 (the
Limitation Act) to the Code has been deliberated upon in several
judgments of NCLT and NCLAT. The existing jurisprudence on
this subject indicates that if a law is a complete code, then an
express or necessary exclusion of the Limitation Act should be
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respected. In light of the confusion in this regard, the Committee
deliberated on the issue and unanimously agreed that the
intent of the Code could not have been to give a new lease of
life to debts which are time-barred. It is settled law that when a
debt is barred by time, the right to a remedy is time-barred. This
requires being read with the definition of “debt” and “claim” in
the Code. Further, debts in winding-up proceedings cannot be time-
barred, and there appears to be no rationale to exclude the
extension of this principle of law to the Code.
28.2. Further, non-application of the law on limitation creates the
following problems: first, it re-opens the right of financial and
operational creditors holding time-barred debts under the Limitation
Act to file for CIRP, the trigger for which is default on a debt
above INR one lakh. The purpose of the law of limitation is ‘to
prevent disturbance or deprivation of what may have been
acquired in equity and justice by long enjoyment or what may
have been lost by a party’s own inaction, negligence or
laches’. Though the Code is not a debt recovery law, the trigger
being “default in payment of debt” renders the exclusion of the
law of limitation counter-intuitive. Second, it re-opens the right of
claimants (pursuant to issuance of a public notice) to file time-
barred claims with IRP/RP, which may potentially be a part of the
resolution plan. Such a resolution plan restructuring time-barred
debts and claims
may not be in compliance with the existing laws
for the time being in force as per Section 30(4) of the Code.
28.3. Given that the intent was not to package the Code as a
fresh opportunity for creditors and claimants who did not
exercise their remedy under existing laws within the prescribed
limitation period, the Committee thought it fit to insert a
specific section applying the Limitation Act to the Code. The
relevant entry under the Limitation Act may be on a case-to-case
basis. It was further noted that the Limitation Act may not apply
to applications of corporate applicants, as these are initiated by
the applicant for its own debts for the purpose of CIRP and are
not in the form of a creditor’s remedy.”
(emphasis in original and supplied)
12. The Report of the Committee would indicate that it has applied
its mind to judgments of NCLT and NCLAT. It has also applied
BABULAL VARDHARJI GURJAR v. VEER GURJAR ALUMINIUM
INDUSTRIES PVT. LTD. [DINESH MAHESHWARI, J.]
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its mind to the aspect that the law is a complete Code and
the fact that the intention of such a Code could not have
been to give a new lease of life to debts which are time-
barred.”
(emphasis in bold supplied)
22.1.  Further, in B.K. Educational Services, this Court extensively
dealt with the issues as to whether the Code being exhaustive in nature,
would result in overriding the Limitation Act and as to whether the object
of the legislature was to apply the limitation prescribed under the Code
retrospectively. This Court, relying on a plethora of judgments and the
said Insolvency Law Committee Report of March, 2018 stated the views
in no uncertain terms that,-
“34……. the legislature did not contemplate enabling a creditor
who has allowed the period of limitation to set in to allow such
delayed claims through the mechanism of the Code. The Code
cannot be triggered in the year 2017 for a debt which was time-
barred, say, in 1990, as that would lead to the absurd and extreme
consequence of the Code being triggered by a stale or dead claim,
leading to the drastic consequence of instant removal of the present
Board of Directors of the corporate debtor permanently, and which
may ultimately lead to liquidation and, therefore, corporate death.
This being the case, the expression “debt due” in the definition
Sections of the Code would obviously only refer to debts that are
“due and payable” in law, i.e., the debts that are
not time-barred.
That this is the case has already been held by us in the Innoventive
Industries Ltd. (supra)…..
****
****
****
36. The definition of “default” in Section 3(12) uses the expression
“due and payable” followed by the expression “and is not paid by
the debtor or the corporate debtor…”. “Due and payable” in
Section 3(12), therefore, only refers to the whole or part of a
debt, which when referring to the date on which it becomes “due
and payable”, is not in fact paid by the corporate debtor. The
context of this provision is therefore actual non-payment by the
corporate debtor when a debt has become due and payable.
****
****
****
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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.
(emphasis in bold supplied)
23. After the aforesaid decisions dated 31.08.2017 in Innoventive
Industries and dated 11.10.2018 in B.K. Educational Services, this
Court again examined the overall scheme and spirit of the provisions of
IBC in the case of Swiss Ribbons (supra) on 25.01.2019. The relevant
enunciations in Swiss Ribbons have already been noticed hereinbefore.
24. Thereafter, the case of K. Sashidhar (supra) was decided on
05.02.2019. Therein, the principal issue related with the dispensation
governing the process of approval or rejection of resolution plan by the
Committee of Creditors33 but, having regard to the variety of contentions
urged, this Court took note of the decisions elaborately dealing with the
legislative history of the Code including that in Innoventive Industries
(supra). During the course of submissions, the said decision in B.K.
Educational
Services was also cited and hence, the same was referred
to and the ratio therein was explained in the following passage:
“78. As regards the decision in B.K. Educational, the Court was
called upon to consider the question as to whether the Limitation
Act, 1963 will apply to applications that are made under Section 7
and/or Section 9 of the Code on and from its commencement on
1-12-2016 till 6-6-2018. That question was examined in the context
of Section 238-A inserted in the I&B Code by the self-same
Amendment Act of 2018. The Court after adverting to the
contents of the report of the Insolvency Law Committee of
March 2018 and other provisions of the Code and other
enactments, opined that Section 238-A was clarificatory in
nature and being a procedural law, came to hold that it had
33 ‘CoC’ for short.
BABULAL VARDHARJI GURJAR v. VEER GURJAR ALUMINIUM
INDUSTRIES PVT. LTD. [DINESH MAHESHWARI, J.]
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retrospective effect. The Court held that taking any other
view would result in an incongruous situation as the
provisions of the Limitation Act would apply in some set of
cases to be decided by the same Tribunal and not in other
set of cases. Besides, the Court adverted to the principle
that right to sue accrues on the date when default occurs
and if the default occurred even three years prior to the
date of filing of the application, the same cannot be treated
as “debt that is due and payable” or “debt” due.”
(emphasis in bold supplied)
25. As noticed, the abovementioned decision in K. Sashidhar was
rendered on 05.02.2019 wherein, the principles in B.K. Educational
Services were undoubtedly restated by this Court. However, thereafter,
the case of Jignesh Shah (supra) came to be decided by a three-Judge
Bench of this Court on 25.05.2019. A particular passage in this three-
Judge Bench decision in Jignesh Shah (as occurring in paragraph 21,
SCC p. 770) has been relied upon by both the parties to assert that the
law so declared by this Court supports their case.
25.1 In order to comprehend the meaning and import of the referred
observations in paragraph 21 of Jignesh Shah, the text thereof is required
to be read in its context. Therefore, it shall be worthwhile to take note of
the relevant factual and background aspects of the case of Jignesh
Shah. Therein, IL&FS Financial Services Ltd. (‘IL&FS’) had filed a
winding
up petition against La-Fin Financial Services Pvt. Ltd. (‘La-
Fin’) which was transferred to National Company Law Tribunal, Mumbai
Branch and then, was heard as Section 7 application under the Code.
The background had been that on 20.08.2009, a share-purchase agreement
was executed, whereby IL&FS agreed to purchase 442 lakhs equity
shares of MCX Stock Exchange Limited (‘MCX-SX’) from Multi-
Commodity Exchange India Limited (‘MCX’). Pursuant to this
agreement, La-Fin, as a group company of MCX, issued a letter of
undertaking to IL&FS on 20.08.2009 stating that La-Fin or its appointed
nominees would offer to purchase from IL&FS the shares of MCX-SX
after a period of one year, but before three years, from the date of
investment. Thereafter, on 03.08.2012, IL&FS proposed to sell its entire
holding of shares in MCX-SX and called upon La-Fin to purchase these
shares in terms of the undertaking. On 16.08.2012, La-Fin replied with
denial of any legal or contractual obligation to buy the aforesaid shares.
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Ultimately, on 19.06.2013, IL&FS filed Suit No. 449 of 2013 in the
Bombay High Court for specific performance of the letter of undertaking
by La-Fin or, in the alternative, for damages while stating that the cause
of action arose on 16.08.2012 when La-Fin refused to honour its
obligation. Interim injunction was granted in the said suit on 13.10.2014.
Thereafter, on 03.11.2015, a statutory notice under Sections 433 and
434 of the Companies Act, 1956 was issued by IL&FS to La-Fin while
referring to the attachment of the properties of La-Fin by Economic
Offences Wing of the Mumbai Police and stating that La-Fin was
obviously in no financial position to pay the amount it owed to IL&FS.
This notice was followed up by the winding up petition that was filed on
21.10.2016 by IL&FS against La-Fin in the Bombay High Court under
Section 433(e) of the Companies Act, 1956. As noticed, this company
petition was transferred to NCLT and was heard as an application under
Section 7 of the Code. This transferred petition was admitted by NCLT
while forming the opinion that as per the share-purchase agreement and
the letter of understanding, a financial debt had been incurred by La-Fin.
The appeal filed by the appellant Jignesh Shah was also dismissed by
NCLAT. Hence, the orders passed by NCLT and NCLAT were
challenged in this Court. A writ petition was also filed challenging the
constitutionality of certain provisions of the Code. This has been the
backdrop in which, the
statutory bar of limitation against the petition
filed by IL&FS was argued before this Court with reference to Section
238-A of the Code and the decision in B.K. Educational Services
(supra).
25.2. This Court accepted the contentions urged on behalf of the
appellants and while reproducing the relevant passages from B.K.
Educational Services, held that the bar of limitation was operating over
the application filed by IL&FS in the following words:-
“12. This judgment clinches the issue in favour of the Petitioner/
Appellant. With the introduction of Section 238A into the Code,
the provisions of the Limitation Act apply to applications made
under the Code. Winding up petitions filed before the Code came
into force are now converted into petitions filed under the Code.
What has, therefore, to be decided is whether the Winding up
Petition, on the date that it was filed, is barred by lapse of time. If
such petition is found to be time-barred, then Section 238A of the
Code will not give a new lease of life to such a time-barred petition.
BABULAL VARDHARJI GURJAR v. VEER GURJAR ALUMINIUM
INDUSTRIES PVT. LTD. [DINESH MAHESHWARI, J.]
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On the facts of this case, it is clear that as the Winding up
Petition was filed beyond three years from August, 2012
which is when, even   according  to  IL & FS,  default   in
repayment had occurred, it is barred by time.”
(emphasis in bold supplied)
25.3. Though with the aforesaid finding, the matter stood
concluded that the petition filed by IL&FS was barred by limitation but
thereafter, the Court also proceeded to examine another line of
submissions of the parties as regards effect of the suit for recovery over
the proceedings under Section 433 of the Companies Act, 1956, where it
was argued on behalf of the appellants that  existence of such a suit
cannot be construed as having either revived the period of limitation or
having extended it, insofar as concerning the proceeding for winding up.
This Court accepted the said contention of the appellants and in that
context, made the observations that are relied upon by the parties and
read as under:-
“21. 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.”
25.4. Moreover, after reading the provisions contained in Sections
433(e) and 434 of the Companies Act, 1956, for winding up in case of
company being unable to pay its debts, this Court made yet further
observations in Jignesh Shah (supra) that the trigger for limitation in
such an action occurs when a default takes place after which the debt
remains outstanding; and that date alone is relevant for reckoning the
period of limitation. After reproducing Section 433(e) and 434 of the
Companies Act, 1956, this Court said,-
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“28. A reading of the aforesaid provisions would show that the
starting point of the period of limitation is when the company is
unable to pay its debts, and that Section 434 is a deeming provision
which refers to three situations in which a Company shall be
deemed to be “unable to pay its debts” Under Section 433(e). In
the first situation, if a demand is made by the creditor to whom
the company is indebted in a sum exceeding one lakh then due,
requiring the company to pay the sum so due, and the company
has for three weeks thereafter “neglected to pay the sum”, or to
secure or compound for it to the reasonable satisfaction of the
creditor. “Neglected to pay” would arise only on default to pay
the sum due, which would clearly be a fixed date depending on
the facts of each case. Equally in the second situation, if execution
or other process is issued on a decree or order of any Court or
Tribunal in favour of a creditor of the company, and is returned
unsatisfied in whole or in part, default on the part of the debtor
company occurs. This again is clearly a fixed date depending on
the facts of each case. And in the third situation, it is necessary to
prove to the “satisfaction of the Tribunal” that the company is
unable to pay its debts. Here again, the trigger point is the date on
which default is committed, on account of which the Company is
unable to pay its debts. This again is a fixed date that can be
proved on the facts of each case. Thus, Section
433(e) read
with Section 434 of the Companies Act, 1956 would show
that the trigger point for the purpose of limitation for filing
of a winding up petition Under Section 433(e) would be the
date of default in payment of the debt in any of the three situations
mentioned in Section 434.”
(emphasis in bold supplied)
26. Before examining the purport, effect and impact of the principles
emanating from the aforesaid decision in Jignesh Shah, it is rather
expedient to take note of the enunciations in a few later decisions of this
Court, on the very same issue concerning the operation of law of limitation
in regard to the application under Section 7 of the Code, which have
been cited in the present appeal.
27. One such decision had been in the case of Vashdeo R.
Bhojwani (supra) that was rendered on 02.09.2019. In that case, a default
of Rs. 6.7 crores was found against the corporate debtor whose account
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INDUSTRIES PVT. LTD. [DINESH MAHESHWARI, J.]
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was declared NPA by the lender bank on 23.12.1999 and ultimately, a
recovery certificate dated 24.12.2001 was issued for this amount. Later
on, the financial creditor filed an application under Section 7 of the Code
before the Adjudicating Authority on 21.07.2017 claiming that the said
amount together with interest, which kept ticking from 1998, was payable
to it as assignee. The application under Section 7 was admitted on
05.03.2018 by the Adjudicating Authority stating that ‘as the default
continued, no period of limitation would attach and the petition
would, therefore, have to be admitted’. The Appellate Tribunal
dismissed the appeal against the aforesaid order of admission while stating
that ‘since the cause of action in the present case was continuing,
no limitation period would attach’; and while further holding that the
recovery certificate of 2001 plainly showed that there was a default and
there was no statable defence. After taking note of the relevant facts
and the foundation of the orders passed by the Adjudicating Authority
and the Appellate Tribunal, this Court disapproved the same while finding
that the case was covered by the decision in B.K. Educational Services
(supra) and while reiterating the passage above-noted. To get out of the
rigour of the ratio of B.K. Educational Services, a reference was made
to the provisions of the Limitation Act providing for fresh period of
limitation in the case of
continuing cause of action and it appears that
Section 23 of the old Limitation Act of 1908 was referred to34. This
Court rejected such contention while observing as under:
34 We have indicated the provision contained in Limitation Act, 1908 for the reason that
in the cited decision, Section 23 has been referred and the decision of this Court
reported in [1959] Supp. (2) SCR 476 has been cited. The corresponding provision, as
regards continuing cause of action for specific category of cases is now contained in
Section 22 of the Limitation Act, 1963 which is akin to the earlier Section 23 of the
Limitation Act,1908 but with slight modifications. For the sake of reference, these
provisions are extracted as under:
Section 23 of the Limitation Act, 1908
“Continuing breaches and wrongs - In the case of a continuing breach of contract
and in the case of a continuing wrong independent of contract, a fresh period of limitation
begins to run at every moment of the time during which the breach or the wrong, as the
case may be, continues.”
Section 22 of the Limitation Act, 1963
“Continuing breaches and torts. - In the case of a continuing breach of contract or in
the case of a continuing tort, a fresh period of limitation begins to run at every moment
of the time during which the breach or the tort, as the case may be, continues.”
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“4. In order to get out of the clutches of para 27, it is urged that
Section 23 of the Limitation Act would apply as a result of which
limitation would be saved in the present case. This contention is
effectively answered by a judgment of three learned Judges of
this Court in Balakrishna Savalram Pujari and Others vs. Shree
Dhyaneshwar Maharaj Sansthan & Others, [1959] Supp. (2)
SCR 476. In this case, this Court held as follows:
“ … In dealing with this argument it is necessary to bear in
mind that 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. Thus considered it is
difficult to hold that the trustees’ act in denying altogether the
alleged rights of the Guravs as hereditary
worshippers and in
claiming and obtaining possession from them by their suit in
1922 was a continuing wrong. The decree obtained by the
trustees in the said litigation had injured effectively and
completely the appellants’ rights though the damage caused
by the said decree subsequently continued.”
Following this judgment, it is clear that when the recovery
certificate dated 24-12-2001 was issued, this certificate
injured effectively and completely the appellant’s rights as
a result of which limitation would have begun ticking.
5. This being the case, and the claim in the present suit being
time-barred, there is no doubt that is due and payable in law. We
allow the appeal and set aside the orders of NCLT and NCLAT.
There will be no order as to costs.”
(emphasis in bold supplied)
BABULAL VARDHARJI GURJAR v. VEER GURJAR ALUMINIUM
INDUSTRIES PVT. LTD. [DINESH MAHESHWARI, J.]
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28. A few days after the decision in Vashdeo R. Bhojwani, a
three-Judge Bench of this Court had another occasion to apply and explain
the ratio in B.K. Educational Services. That was in the case of Gaurav
Hargovindbhai Dave (supra), decided on 18.09.2019. Therein, the
financial creditor had stated in the relevant column of Form No. 1 of the
application under Section 7 of the Code the date of default to be the date
of NPA i.e., 21.07.2011. The application under Section 7 was filed on
03.10.2017. The Adjudicating Authority applied Article 62 of the Limitation
Act and reached to the conclusion that since the limitation period was
twelve years from the date on which money sued has become due, the
claim was within limitation and hence, admitted the application. The
NCLAT applied another reasoning that the time of limitation would begin
to run only from 01.12.2016, the date on which the Code was brought
into force. This Court took note of the contentions of both the parties
and while accepting the submissions that time began to run on 21.07.2011
(the date of NPA), held that the application filed under Section 7 was
time-barred. The relevant passages of the said decision in Gaurav
Hargovindbhai Dave (supra) could be usefully reproduced as under:-
“4. Mr Aditya Parolia, learned counsel appearing on behalf of the
appellant has argued that Article 137 being a residuary article
would apply on the facts of this case, and as
right to sue accrued
only on and from 21.07.2011, three years having elapsed since
then in 2014, the Section 7 application filed in 2017 is clearly out
of time. He has also referred to our judgment in B.K. Educational
Services Private Limited v. Parag Gupta and Associates, 2018
SCC OnLine SC 1921 in order to buttress his argument that it is
Article 137 of the Limitation Act which will apply to the facts of
this case.
5. Mr Debal Banerjee, learned Senior Counsel, appearing on behalf
of the respondents, countered this by stressing, in particular, para
7 of B.K. Educational Services Private Limited  (supra) and
reiterated the finding of the NCLT that it would be Article 62 of
the Limitation Act that would be attracted to the facts of this
case. He further argued that, being a commercial Code, a
commercial interpretation has to be given so as to make the Code
workable.
6. Having heard the learned counsel for both sides, what is
apparent is that Article 62 is out of the way on the ground
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that it would only apply to suits. The present case being
“an application” which is filed under Section 7, would fall
only within the residuary Article 137. As rightly pointed
out by learned counsel appearing on behalf of the appellant,
time, therefore, begins to run on 21.07.2011, as a result of
which the application filed under Section 7 would clearly be
time-barred. So far as Mr Banerjee’s reliance on para 7 of B.K.
Educational Services Private Limited  (supra), suffice it to say
that the Report of the Insolvency Law Committee itself stated
that the intent of the Code could not have been to give a new
lease of life to debts which are already time-barred.
7. This being the case, we fail to see how this para could possibly
help the case of the respondents. Further, it is not for us to interpret,
commercially or otherwise, articles of the Limitation Act when it
is clear that a particular article gets attracted. It is well settled
that there is no equity about limitation - judgments have stated
that often time periods provided by the Limitation Act can be
arbitrary in nature.
8. This being the case, the appeal is allowed and the judgments of
the NCLT and NCLAT are set aside.”
(emphasis in bold supplied)
29. Close on the heels of Gaurav Hargovindbhai Dave (supra),
this Court dealt with similar issue yet again in the case of Sagar Sharma
(supra), decided on 30.09.2019. Therein, apart from disapproving the
proposition that the date of commencement of the Code
could be the
starting point of limitation (as noticed hereinabove), this Court again
pointed out the fallacy in applying the period of limitation related to
mortgage liability to the application under Section 7 of the Code and
said, –
“2…..However, we find in the impugned judgment that Article 62
(erroneously stated to be Article 61) was stated to be attracted to
the facts of the present case, considering that there was a deed
of mortgage which was executed between the parties in this case.
We may point out that an application under Section 7 of the
Code does not purport to be an application to enforce any
mortgage liability. It is an application made by a financial creditor
stating that a default, as defined under the Code, has been made,
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which default amounts to Rs 1,00,000 (Rupees one lakh) or more
which then triggers the application of the Code on settled principles
that have been laid down by several judgments of this Court.”
(emphasis in bold supplied)
30. When Section 238-A of the Code is read with the above-
noted consistent decisions of this Court in Innoventive Industries,
B.K. Educational Services, Swiss Ribbons, K. Sashidhar,
Jignesh Shah, Vashdeo R. Bhojwani, Gaurav Hargovindbhai
Dave and Sagar Sharma respectively, the following basics
undoubtedly come to the fore: (a) that the Code is a beneficial
legislation intended to put the corporate debtor back on its feet
and is not a mere money recovery legislation; (b) that CIRP is not
intended to be adversarial to the corporate debtor but is aimed at
protecting the interests of the corporate debtor; (c) that intention
of the Code is not to give a new lease of life to debts which are
time-barred; (d) that the period of limitation for an application
seeking initiation of CIRP under Section 7 of the Code is governed
by Article 137 of the Limitation Act and is, therefore, three years
from the date when right to apply accrues; (e) that the trigger for
initiation of CIRP by a financial creditor is default on the part of
the corporate debtor, that is to say, that the right to apply under
the Code accrues on the date when default occurs; (f) that default
referred to in the Code is that of actual
non-payment by the
corporate debtor when a debt has become due and payable; and
(g) that if default had occurred over three years prior to the date
of filing of the application, the application would be time-barred
save and except in those cases where, on facts, the delay in filing
may be condoned; and (h) an application under Section 7 of the
Code is not for enforcement of mortgage liability and Article 62
of the Limitation Act does not apply to this application.
Whether Section 18 Limitation Act could be applied to the
present case
31. While the aforesaid principles remain crystal clear with the
consistent decisions of this Court, the only area of dispute, around which
the contentions of learned counsel for the parties have revolved in the
present case, is about applicability of Section 18 of the Limitation Act
and effect of the observations occurring in paragraph 21 of the decision
in Jignesh Shah (supra).
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32. We have noticed all the relevant and material observations
and enunciations in the case of Jignesh Shah hereinbefore. Prima facie,
it appears that illustrative reference to Section 18 of the Limitation Act,
in paragraph 21 of the decision in Jignesh Shah, had only been in relation
to the suit or other proceedings, wherever it could apply and where the
period of limitation could get extended because of acknowledgment of
liability. Noticeably, in contradistinction to the proceeding of a suit, this
Court observed that 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 filed35. It is difficult to read the observations in the aforesaid
paragraph 21 of Jignesh Shah to mean that the ratio of B.K.
Educational Services has, in any manner, been altered by this Court.
As noticed, in B.K. Educational Services, it has clearly been held that
the limitation period for application under Section 7 of the Code is three
years as provided by Article 137 of the Limitation Act, which commences
from the date of default and is extendable only by application of Section
5 of Limitation Act, if any case for condonation of delay is made out.
The findings in paragraph 12 in Jignesh Shah makes it clear that the
Court indeed applied the principles so stated in B.K. Educational
Services, and held that the winding up petition filed beyond
three years
from the date of default was barred by time.
32.1. Even in the later decisions, this Court has consistently applied
the declaration of law in B.K. Educational Services (supra). As noticed,
in the case of Vashdeo R. Bhojwani (supra), this Court rejected the
contention suggesting continuing cause of action for the purpose of
application under Section 7 of the Code while holding that the limitation
started ticking from the date of issuance of recovery certificate dated
24.12.2001. Again, in the case of Gaurav Hargovindbhai Dave (supra),
where the date of default was stated in the application under Section 7
of the Code to be the date of NPA i.e., 21.07.2011, this Court held that
the limitation began to run from the date of NPA and hence, the application
filed under Section 7 of the Code on 03.10.2017 was barred by limitation.
32.2. In view of the above, we are not inclined to accept the
arguments built up by the respondents with reference to one part of
observations occurring in paragraph 21 of the decision in Jignesh Shah
(supra).
35What has been observed in relation to the proceeding for winding up, perforce, applies
to the application seeking initiation of CIRP under IBC.
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33. Apart from the above and even if it be assumed that the
principles relating to acknowledgement 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 they enure to the
benefit of respondent No. 2 for the fundamental reason that in the
application made before NCLT, the respondent No. 2 specifically stated
the date of default as ‘8.7.2011 being the date of NPA’. It remains
indisputable that neither any other date of default has been stated in the
application nor any suggestion about any acknowledgement has been
made. As noticed, even in Part-V of the application, the respondent No.
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 No. 8 therein, nothing was at all stated at any
place about the so called acknowledgment or any other date of default.
33.1. Therefore, on the admitted fact situation of the present case,
where only the date of default as ‘08.07.2011’ 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
acknowledgement or any other
date of default, in our view, the submissions
sought to be developed on behalf of the respondent No. 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, the respondent No. 2 never came out with any pleading other than
stating the date of default as ‘08.07.2011’ 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 acknowledgement. In this view of the matter, reliance on
the decision in Mahaveer Cold Storage Pvt. Ltd. does not advance the
cause of the respondent No. 2.
34. The submissions made on behalf of respondents that the rules
of limitation are not meant to destroy the rights of the parties and
reference to the decision in N. Balakrishnan (supra) are also misplaced.
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Application of the rules of limitation to CIRP (by virtue of Section 238-
A of the Code read with the above-referred consistent decisions of this
Court) does not, in any manner, deal with any of the rights of respondent
No. 2; it only bars recourse to the particular remedy of initiation of CIRP
under the Code. Equally, the other submissions made on behalf of the
respondents about any stringent application of the law of limitation which
was introduced to the Code only after filing of the application by
respondent No. 2; or about the so called prejudice likely to be caused to
other banks and financial institutions are also of no substance, particularly
in the light of the principles laid down and consistently followed by this
Court right from the decision in B.K. Educational Services (supra).
These contentions have only been noted to be rejected. Needless to add
that when the application made by the respondent No. 2 for CIRP is
barred by limitation, no proceedings undertaken therein after the order
of admission could be of any effect. All such proceedings remain non-
est and could only be annulled.
The reasonings of NCLAT
35. The foregoing discussion practically concludes the principal
part of contentions urged in this matter but, to put the record straight, we
may also deal with the reasonings adopted by NCLAT in the impugned
order dated 14.05.2019. As noticed hereinbefore, though NCLAT has
referred to the pendency of the application under Section 19 of
the Act
of 1993 as also the fact that corporate debtor had made a prayer for
OTS in the month of July, 2018 but, has not recorded any specific finding
about the effect of these factors. Only two reasons essentially appear to
have weighed with NCLAT to hold that the application in question is
within limitation: One, that the right to apply under Section 7 of the Code
accrued to the respondent financial creditor on 01.12.2016 when the
Code came into force; and second, that the period of limitation for
recovery of possession of the mortgaged property is twelve years. The
reasonings so adopted by NCLAT do not stand in conformity with the
law declared by this Court and could only be disapproved.
36. The question as to whether date of enforcement of the Code
(i.e., 01.12.2016) provides the starting point of limitation for an application
under Section 7 of the Code and hence, the application in question, made
in the year 2018, is within limitation, is not even worth devoting much
time. A bare look at paragraph 21 of the impugned order leaves nothing
to guess that such observations by the Appellate Tribunal had only been
assumptive in nature without any foundation and without any basis. There
is nothing in the Code to even remotely indicate if the period of limitation
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for the purpose of an application under Section 7 is to commence from
the date of commencement of the Code itself. Similarly, nothing provided
in the Limitation Act could be taken as the basis to support the proposition
so stated by the Appellate Tribunal. In fact, such observations had been
in the teeth of law declared by this Court in the case of B. K.
Educational Services (supra).
36.1. It appears that at the given point of time, NCLAT had been
readily adopting such a proposition in other cases too, so as to treat
similar applications within limitation. This approach of NCLAT was
specifically disapproved by this Court in Sagar Sharma (supra) where,
after observing that in B. K. Educational Services (supra) it had already
been made clear that the date of the Code’s coming into force on
01.12.2016 was wholly irrelevant to the triggering of any limitation period
for the purposes of the Code, this Court said,-
“3. Article 141 of the Constitution of India mandates that our
judgments are followed in letter and spirit. The date of coming
into force of the IB Code does not and cannot form a trigger point
of limitation for applications filed under the Code. Equally, since
“applications” are petitions which are filed under the Code, it is
Article 137 of the Limitation Act which will apply to such
applications.”
37. The other observations as made and the reasoning as adopted
by the Appellate Tribunal in paragraphs 29 and 30
of the impugned order,
that the property having been mortgaged, the claim is not barred by
limitation because of the period of limitation of twelve years with regard
to mortgaged property, had again been erroneous and do not stand in
conformity with the dictum of this Court.
37.1. The Appellate Tribunal was conscious of the decision of this
Court in B. K. Educational Services (supra) wherein it had been held
in no uncertain terms that the limitation provided in Article 137 governs
the application under Section 7 of the Code. When Article 137, being the
residuary provision on the period of limitation for “other applications” is
held applicable by this Court for the purpose of reckoning the period of
limitation for an application under Section 7 of the Code, it remains rather
inexplicable as to how the Appellate Tribunal could have applied any
other Article of Limitation Act (and that too relating to suits) for the
purpose of such an application?
37.2. In the totality of circumstances, we are also constrained to
refer to paragraph 24 of the very same order wherein, the Appellate
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Tribunal has noticed its own decision in the case of Binani Industries,
holding that the period of limitation prescribed in the First Division of the
Schedule to the Limitation Act (providing limitation period for suits) is
not applicable to the proceedings under the Code. However, the
observations and findings in the later part of the impugned order are
contrary even to those occurring in the said paragraph 24 of the very
same order.
37.3. It again appears that in other cases too, similar reasoning
prevailed with the Adjudicating Authorities as also the Appellate Tribunal,
where the Articles of the Limitation Act relating to the suits concerning
mortgaged property (and thereby the period of limitation of twelve years)
were sought to be applied to hold that similar applications under Section
7 of the Code were not barred by limitation. Such propositions were
specifically disapproved by a three-Judge Bench of this Court in the
case of Gaurav Hargovindbhai Dave (supra) decided on 18.09.2019.
As noticed hereinbefore, in Gaurav Hargovindbhai Dave (supra) this
Court disapproved the approach of Adjudicating Authority in applying
Article 62 of the Limitation Act to such an application under Section 7 of
the Code with the observations that Article 62 is out of way, for it applies
only to suits; and application under Section 7 falls within the ambit of
residuary Article 137. In Sagar Sharma (supra), this Court again pointed
out the fallacy in applying the period
of limitation related to mortgage
liability for the purpose of application under Section 7 of the Code.
37.4. In view of the above, there remains nothing to doubt that the
Appellate Tribunal had been in error in applying the period of limitation
provided for mortgage liability for the purpose of limitation applicable to
the application in question. The observations and findings in paragraphs
29 and 30 of the impugned order are also required to be disapproved.
Summation
38. The discussion foregoing leads to the inescapable conclusion
that the application made by the respondent No. 2 under Section 7 of the
Code in the month of March 2018, seeking initiation of CIRP in respect
of the corporate debtor with specific assertion of the date of default as
08.07.2011, is clearly barred by limitation for having been filed much
later than the period of three years from the date of default as stated in
the application. The NCLT having not examined the question of limitation;
the NCLAT having decided the question of limitation on entirely irrelevant
considerations; and the attempt on the part of the respondents to save
the limitation with reference to the principles of acknowledgment having
been found unsustainable, the impugned orders deserve to be set aside
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and the application filed by the respondent No. 2 deserves to be rejected
as being barred by limitation.
Other proceedings not to be affected
39. Before concluding on this matter, we would hasten to observe
that admittedly, at the time of moving of the application under Section 7
of the Code by the respondent No. 2, a petition under Section 19 of the
Act of 1993 was pending before DRT against the corporate debtor. In
view of admission of the application under Section 7 of the Code by
NCLT, the said petition under Section 19 of the Act of 1993 (and any
other pending matter against the corporate debtor) could not have
proceeded during the period of moratorium in terms of Section 14 of the
Code. Now, by virtue of this judgment, the said application under Section
7 of the Code shall stand rejected for being barred by limitation and all
the proceedings thereunder shall stand annulled. As a necessary
consequence, the moratorium in terms of Section 14 of the Code shall
get lifted and, therefore, those stalled proceedings should now be taken
up and dealt with by the respective Courts/Tribunals/Authorities, of
course, strictly in accordance with law. In the interest of justice, we also
make it clear that the observations in this judgment are relevant only in
regard to the issue determined that the application under Section 7 of the
Code is barred by limitation and not beyond. In other words, nothing in
this judgment shall
have bearing on any other proceeding that shall be
dealt with on its own merits and in accordance with law.
Conclusion
40. In view of the above, this appeal is allowed to the extent
indicated and with the observations foregoing. The impugned orders dated
14.05.2019 as passed by the National Company Law Appellate Tribunal,
New Delhi in Company Appeal (AT) Insolvency No. 549 of 2018 and
dated 09.08.2018 as passed by the National Company Law Tribunal,
Mumbai Bench in CP(IB)-488/I&BP/MB/2018 are set aside; and the
application made by the respondent No. 2 under Section 7 of the Code,
seeking initiation of Corporate Insolvency Resolution Process in respect
of respondent No. 1 is rejected for being barred by limitation.
Consequently, all the proceedings undertaken in the said application under
Section 7 of the Code, including appointment of IRP, stand annulled. No
costs.
Ankit Gyan
Appeal allowed.