An acknowledgement is to be an ‘acknowledgement of debt’ & must involve an admission of subsisting relationship of debtor and creditor; and an intention to continue it. An acknowledgement does not create a new right – Yogeshkumar Jashwantlal Thakkar Vs. Indian Overseas Bank – NCLAT New Delhi
Challenging the validity, propriety and legality of the impugned order passed by the Adjudicating Authority (NCLT, Ahmedabad Bench), the Learned Counsel for the Appellant submits that the application filed by the 1st Respondent / Bank (‘Financial Creditor’) is time barred and in fact, the said application was filed on 01.04.2019 but the date of default mentioned in Section 7 application before the Adjudicating Authority was on 01.01.2016, therefore, it is the stand of the Appellant that the application filed by the 1st Respondent / Bank after the expiry of three years is hit by the plea of ‘Limitation’. The Learned Counsel for the Appellant contends that the Balance confirmation dated 02.09.2016 and ‘Revival Letter’ 31.03.2017 being the acknowledgements relied on by the 1st Respondent / Bank before this Tribunal were not placed before the Adjudicating Authority.
NCLAT held that the Present case centres around mixed question of ‘Facts’ and ‘Law’. The 1st Respondent/Bank, as per the format, as mentioned at para 20 of this judgement, had given the date of ‘Default’ / ‘NPA’ as 01.01.2016 and that the Section 7 of the application of Code was filed before the Adjudicating Authority 01.04.2019, by the 1st Respondent / Bank. Prima facie, the Appeal needs to be allowed, if this is the single ground. However, in the instant case, the 1st Respondent/Bank had obtained balance confirmations certificate, the last one being 31.03.2017 as mentioned elaborately in Para 21 of this judgement. Although, this Appellate Tribunal had largely held in ‘Rajendra Kumar Tekriwal’ Vs. ‘Bank of Baroda’ [2020] ibclaw.in 45 NCLAT and in Jagdish Prasad Sarada Vs. Allahabad Bank [2020] ibclaw.in 85 NCLAT, (both being three Members Bench) had taken a stand that the Limitation Act, 1963 will be applicable to all NPA cases provided, they meet the criteria of Article 137 of the Schedule to the Limitation Act, 1963, the extension of the period can be made by way of Application under Section 5 of the Limitation Act, 1963 for condonation of delay; however, the peculiar attendant facts and circumstances of the present case which float on the surface are quite different where the 1st Respondent / Bank had obtained Confirmations/Acknowledgments in writing in accordance with Section 18 of the Limitation Act periodically. As a matter of fact, Section 18 of the Limitation Act, 1963 is applicable both for ‘Suit’ and ‘Application’ involving ‘Acknowledgment of Liability’, creating a fresh period of limitation, which shall be computed from the date when the ‘Acknowledgment’ was so signed.
