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2. We need to notice first the facts of the case and sequence of the events giving rise to filing of these two Appeals by the Director of the Corporate Debtor (Respondent No.2). Corporate Debtor decided to setup a Thermal Power Plant in the State of Jharkhand having capacity of 540 megawatt in two phases. Subsequently increased to 1080 MW (Project). Between 2009 to 2011 (starting from 05.12.2009), the Corporate Debtor executed Loan Agreement and other financing documents with the Consortium of Lenders and availed loan facilities from the Consortium aggregating to INR 2175 crores for phase-1 of the project and INR 2387 crores for phase-II of the project. Due to continuous default in payment, the account of the Corporate Debtor was classified as Non-Performing Asset (NPA) by the State Bank of India on 31st July, 2013. On 27.03.2015, the State Bank of India issued a loan recall notice to the Corporate Debtor in its capacity as the Lenders' Agent. Some of the Lenders of the Corporate Debtor including State Bank of India assigned their debts from the Corporate Debtor to the Asset Reconstruction Company (India) Ltd., Respondent No.1.
8. The judgment dated 22nd December, 2020 was challenged by Respondent No.1/ Financial Creditor in Civil Appeal No.323 of 2021 in the matter of Asset Reconstruction Company (India) Ltd. vs. Bishal Jaiswal & Anr., which Appeal was allowed by setting aside the judgment dated 22nd December, 2020. The Hon'ble Supreme Court has also set aside majority judgment of the full Bench dated 12th March, 2020 in V. Padma Kumar vs. Stressed Assets Stabilisation Fund (ASAP) & Anr. The Apex Court remanded the matter to the NCLAT to be decided in accordance with law laid down in the judgment. The Company Appeal (AT) (Insolvency) Company Appeal (AT) (Insolvency) No. 385 of 2020 with Company Appeal (AT) (Insolvency) No. 903 of 2021 6 No.385 of 2020 thus has been placed before this Bench for hearing consequent to remand by Hon'ble Supreme Court judgment dated 15th April, 2021.
(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."
36. In the judgment dated 15th April, 2021 of the Hon'ble Supreme Court in Civil Appeal No.323 of 2021, which was filed against the judgment of this Company Appeal (AT) (Insolvency) No. 385 of 2020 with Company Appeal (AT) (Insolvency) No. 903 of 2021 24 Appellate Tribunal dated 22nd December, 2020, the Hon'ble Apex Court elaborately considered the law pertaining to the applicability of Section 18 of the Limitation Act in the IBC proceedings. In Asset Reconstruction Company (India) Ltd. vs. Bishwal Jaiswal and Anr. (supra), most of the earlier judgments on applicability of Section 18 has been referred to and relied. Section 18 of the Limitation Act, 1963, which was pari materia of Section 19 of Limitation Act, 1908, came for consideration before the Calcutta High Court in Bengal Silk Mills Co. vs. Ismail Golam Hossain Ariff [1961 SCC OnLine Cal 128], the Division Bench of Calcutta High Court had occasion to consider the acknowledgement of liability in balance sheets of the Corporate Debtor in reference to Section 19 of the Limitation Act, 1908 and following was held in paragraph 9:
40. In Asset Reconstruction Company (India) Ltd. vs. Bishal Jaiswal & Anr., the Hon'ble Supreme Court after review, approvingly quoted the Calcutta High Court judgment in Bengal Silk Mills and in paragraph 21, the following was laid down:
"21. Importantly, this judgment in Bengal Silk Mills [Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff, 1961 SCC OnLine Cal 128 : AIR 1962 Cal 115] holds that though the filing of a balance sheet is by compulsion of law, the acknowledgment of a debt is not necessarily so. In fact, it is not uncommon to have an entry in a balance sheet with notes annexed to or forming part of such balance sheet, or in the auditor's report, which must be read along with the balance sheet, indicating that such entry would not amount to an acknowledgment of debt for reasons given in the said note."