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Himmat Steel Case
Himmat Steel Case
Versus
For Appellant: Mr. Abhijeet Sinha, Mr. Akshat Bajpai, Mr. Mohit, Mr.
Sharma, Advocates
For Respondent: Mr. Abhrajit Mitra, Sr. Advocate with Ms. Neha Somani,
PCS. Mr. Kunal Godhwani, Advocate
JUDGEMENT
Ashok Bhushan, J:
filed challenging the Judgement and Order dated 03rd February, 2022
2. Brief facts of the case necessary to be noted for deciding this Appeal
are:-
Credit Facilities were recalled on 28th July, 1995 and suit was filed by
the Appellant for recovery which was transferred to the Debt Recovery
Tribunal, Jabalpur (DRT). DRT passed decree dated 10th April, 2000 in
Revised OTS Proposal was submitted. On 17th June, 2013 and 06th
interest. The Corporate Debtor did not file any Reply to Section 7
January, 2022 when the matter was reserved for Orders. Adjudicating
time ?”. The Adjudicating Authority took the view that in pursuance of
the decree dated 10th April, 2000 passed by the DRT, Financial
Creditor had fresh limitation of three years but the Application under
Section 7 was filed after expiry of the period of three years on 13th
made with effect from 10th April, 2000 when decree was passed by the DRT
be taken with effect from 26th July, 2004 when DRT passed decree in favour
of another Financial Creditor i.e. IDBI Bank. Learned Counsel for the
of the Limitation Act. Learned Counsel for the Appellant has also referred to
4. Mr. Abhrajit Mitra, Sr. Advocate appearing for the Respondent refuting
time. The Account was declared NPA on 01.10.1994 and after passing the
decree by the DRT dated 10th April, 2000, Appellant could have availed the
limitation of three years till 09th April, 2003. The decree by DRT in favour of
Application. The period of limitation for taking the action on basis of decree
dated 10th April, 2000 came to end and any subsequent acknowledgement
shall not save the limitation for the Appellant. Appellant cannot be permitted
to take a case for explaining the limitation which was not mentioned in
Section 25(3) of the Contract Act, Learned Sr. Counsel submits that no plea
was taken before the Adjudicating Authority and for the first time in the
Rejoinder-Affidavit filed in this Appeal, Section 25(3) has been referred to.
The IBC is a complete Code in itself and has overriding effect on provisions
Act.
by time. The law is well settled that limitation for filing the Section 7
7. Brief facts which have been brought on record are that the Account of
the Corporate Debtor was declared NPA on 01.10.1994, suit was filed by the
transferred to the DRT and was decided by the Judgement and Decree dated
10th April, 2000 decreeing the claim of Rs. 8,68,64,184.29/- against the
[(2021) 10 SCC 330], Decree passed by the DRT gave a fresh period of
limitation of three years which came to an end on 09th April, 2003. This
following order:
8. The principal submission which has been placed by Mr. Abhijeet Sinha
passed by DRT in the suit filed by IDBI Bank dated 26th July, 2004. Learned
Counsel for the Appellant has relied on Section 7(1) proviso and the
owed not only to the Applicant Financial Creditor but to any other Financial
11. The submissions of Learned Counsel for the Appellant is that although
the Appellant dated 10th April, 2000, the Application is barred by time but in
event the decree dated 26th July, 2004 in O.A. No. 274/2021 filed by the
IDBI Bank is taken into consideration, the Application is within time. Copy
of the Application filed under Section 7 is part of the record of this Appeal as
Annexure BB.
12. We need to look into the Application under Section 7 to find out as to
for what “default” the Application under Section 7 has been filed. Part-IV of
the Application deals with particulars of financial debt. Entire Part-IV of the
Application is as follows:
“Part-IV
13. When we look into the Part-IV, the default on basis of which, the
payment of the financial facilities extended by the Appellant. The basis of the
Application is not the default committed qua IDBI Bank another Financial
Creditor. When the Application is not founded on the default of the another
Financial Creditor and when factually the Application under Section 7 filed
not for the default of IDBI Bank rather the Application is specifically filed
of Learned Counsel for the Appellant that limitation for filing Section 7
favour of IDBI Bank dated 26th July, 2004. The Decree passed by the DRT
dated 26th July, 2004 on the Application filed by the IDBI was not even filed
before the Adjudicating Authority and for the first time the decree has been
filed along with this Appeal. Mere filing decree in this Appeal shall not entitle
question on the basis of decree dated 26th July, 2004. We thus are of the
view that the decree dated 26th July, 2004 passed in the O.A. of IDBI is
the conclusion that Section 7 Application which was filed on 16th March,
the basis of decree of DRT dated 10th April, 2000 came to an end on 09th
limitation. Section 18(1) of the Limitation Act is clear in this regard which is
as follows:
14. We thus are of the view that Application filed by the Appellant was
clearly barred by time and has rightly been rejected by the Adjudicating
Authority.
15. Now coming to the submission of Learned Counsel for the Appellant
based on Section 25(3) of the Contract Act which has been raised during the
Counsel for the Respondent that the said submission needs no consideration
since the said submission was never raised either before the Adjudicating
16. We thus are of the view that submission for which there was no
before the Adjudicating Authority nor any such of submissions was even
and during the course of the submission is not sufficient for consideration in
this Appeal. Submission based on Section 25(3) of the Contract Act are
hence we are of the view that such submission of the Appellant based on
17. In view of the foregoing discussion, we do not find any merit in the
NEW DELHI
14th November, 2022
Basant