ASHOK BHUSHAN, J.

This Appeal has been filed against order dated 24.02.2023 passed by

the Adjudicating Authority (National Company Law Tribunal), Mumbai

Bench-IV by which order Section 7 application filed by the Respondent No.1

– Financial Creditor has been admitted. The Appellant, Suspended Director

of the Corporate Debtor aggrieved by the admission has come up in this

Appeal. Brief facts of the case necessary to be noticed for deciding this Appeal

are:

i.

A consortium of Bank extended various financial facility to the

Corporate Debtor in the year 2002.

ii.

The account of Corporate Debtor was declared NPA by Bank of

India on 31.03.2015.

iii.

On 16.09.2016, Bank of India issued Recall Notice to the

Appellant recalling monies payable by the Corporate Debtor

under the various credit facilities.

iv.

On 22.11.2018, Bank assigned the debt along with all underlying

security interest under the Deed of Assignment to the Respondent

No.1.

v.

Letter of acceptance was issued on 24.04.2019 and an agreement

was entered under which the Corporate Debtor was to repay the

amounts payable to the Financial Creditor.

-3-

vi.

On 01.11.2021, Section 7 application was filed by the

Respondent No.1.

vii.

On 26.09.2022, Consent Terms were entered between the

Corporate Debtor and the Financial Creditor in the proceedings

before Debts Recovery Tribunal.

viii.

By order dated 24.02.2023, the Adjudicating Authority finding

debt and default admitted Section 7 application. Aggrieved by

which order this appeal has been filed.

2.

We have heard Shri Krishnendu Datta, learned senior counsel

appearing for the Appellant and Shri Arvind Nayyar, learned senior counsel

appearing for Respondent No.1.

3.

When the Appeal was taken on 03.03.2023, learned counsel for the

Appellant submitted that they have submitted proposal to Respondent No.1

for repayment of dues. Noticing the aforesaid, interim order was passed on

03.03.2023. Following order was passed on 03.03.2023:

“O R D E R

03.03.2023: Learned Counsel for the Appellant

submits that a proposal has been submitted to

Respondent on 01st March, 2023 for repayment of ARC

Dues.

2. Learned Counsel for the Respondent submits that

proposal has been received which is still under

consideration.

-4-

3. Learned Counsel for the Appellant prays that Appeal

be taken after two weeks to enable the Respondent to

consider the proposal.

As prayed, list this Appeal on 22nd March,

2023. In the meantime, in pursuance of the order

impugned, Committee of Creditors shall not be

constituted.”

4.

Matter was again adjourned on 22.02.2023 noticing that proposal

of the Appellant is under consideration. Appellant took further opportunity

on 19.04.2023 to make another endeavour to submit better offer.

Subsequently, again on 25.05.2023 it was noted that proposal is under

consideration, however, no settlement between the parties could take place.

Learned counsel for the Appellant addressed his submission on 22.11.2023.

5.

Shri Krishnendu Datta, learned counsel for the Appellant submits

that application filed by the Financial Creditor was barred by time. Section 7

application itself mention 31.03.2015 as date of default and the

acknowledgement made on 30.01.2016 at best shall extend the limitation till

29.01.2019. It is submitted that the application filed by the Appellant on

01.11.2021 was clearly beyond three years. It is submitted that the Consent

Terms dated 26.09.2022 shall extend the limitation for three years which was

the reason recorded by the Adjudicating Authority for holding that the

application is within time, is erroneous. The Consent Terms cast a duty upon

the Financial Creditor to withdraw the Company Petition which was not

withdrawn.

-5-

6.

Learned counsel appearing for the Financial Creditor refuting the

submissions of learned counsel for the Appellant contends that application

was well within time. Learned counsel for the Respondent No.1 has referred

to the letter of acceptance dated 24.04.2019, where the Corp