2023 (5) TMI 982 - AT - Insolvency and Bankruptcy

Dismissed appeal due to time bar on Insolvency Code Section 9 application

The appeal was dismissed as the Section 9 application under the Insolvency and Bankruptcy Code was found to be barred by limitation. The email dated ... Initiation of CIRP - NCLT dismissed the application on the ground of period of limitation - relevant date - date of acknowledgement of debt by email - Operational Creditors - Corporate Debtor did not issue any notice of dispute - HELD THAT:- The Corporate Debtor in their reply dated 09.03.2020 to the Section 9 application filed by the Appellant had raised several objections, inter-alia, non-maintainability arising out of the bar created by the Indian Partnership Act, 1932; invalidity of demand notice being in Form III and for not containing date of default; non-receipt of demand notice and non-service with the Information Utility; defective issue of demand notice; etc. - on the issue of limitation, it held that the Section 9 application has not been filed within three years from date of default and in the absence of sufficient material on record to establish extension of limitation period, Section 9 application was dismissed. A plain reading of the provision of Section 4 of IT Act, makes it clear that the intent of Section 4 of the IT Act is to allow any information which can be transmitted on paper by physical mode to also be henceforth transmitted in electronic form too. In other words, this section recognizes that a document sent and received electronically shall be deemed to have complied with the requirement of sending information in writing - the Adjudicating Authority is agreed upon that merely because a document is sent via electronic mode instead of physical mode, the legal and mandatory requirements of authentication of documents will not change and cannot be dispensed away. Section 18 of the Limitation Act also specifies that the acknowledgment should be in writing and signed by the party against whom such right is claimed though of course the word ‘sign’ or ‘signed’ has not been defined in the said section. This requirement is required to be met irrespective of whether it is in electronic or in physical form. Merely because a document is sent via e-mail, the mandatory requirements of Section 18 cannot be exempted - the Adjudicating Authority only exercises summary jurisdiction in admitting or rejecting the Application under Section 9 of the Code. In view of their limited jurisdiction, disputes of authenticity of the statement of accounts annexed to an email, cannot be adjudicated by the Adjudicating Authority. Hence, the Adjudicating Authority cannot be found to have committed any error in not entering into the issue of authenticity of the statement of accounts. Given the fact that the debt has not been acknowledged; that a dispute has also been raised on the quality of goods supplied in the Section 9 application and that the veracity of statement of accounts contained in the form of external attachment to the main body of the email has been questioned, we are persuaded to believe that the email of 05.05.2017 cannot be viewed as an acknowledgment of liability on the part of the Corporate Debtor and hence cannot help in extending the period of limitation. There are no merit in the submissions raised by the Learned Counsel for the Appellant to warrant any interference in the impugned order. The Adjudicating Authority did not commit any error in rejecting the Section 9 application filed by the Appellant on grounds of having been barred by limitation. There is no merit in the appeal - Appeal dismissed. Issues Involved:1. Whether the Section 9 application was barred by limitation.2. Whether the email dated 05.05.2017 constituted a valid acknowledgment of debt under Section 18 of the Limitation Act, 1963.Summary:Issue 1: Whether the Section 9 application was barred by limitation.The Appellant, an Operational Creditor, filed a Section 9 application under the Insolvency and Bankruptcy Code, 2016, seeking initiation of Corporate Insolvency Resolution Process against the Corporate Debtor. The Adjudicating Authority dismissed the application on the grounds of being barred by limitation, noting that the date of default was 08.07.2016 and the application was filed on 22.01.2020, which was beyond the three-year limitation period.Issue 2: Whether the email dated 05.05.2017 constituted a valid acknowledgment of debt under Section 18 of the Limitation Act, 1963.The Appellant argued that the email from the Corporate Debtor dated 05.05.2017 acknowledged the debt, thereby extending the limitation period. The Adjudicating Authority rejected this argument, stating that the acknowledgment of debt in an email must be clear, unambiguous, and authenticated. The email in question contained only the word 'FYI' and the attached statement of accounts was neither signed nor bore the company seal, making it non-compliant with Section 18 of the Limitation Act. The Tribunal upheld this view, emphasizing that digital communication, while legally recognized, must still meet the mandatory requirements of authentication.The Tribunal also noted that the Adjudicating Authority exercises summary jurisdiction and cannot adjudicate disputes regarding the authenticity of documents. Given the absence of clear acknowledgment and the presence of a dispute regarding the quality of goods supplied, the Tribunal concluded that the email did not constitute an acknowledgment of liability.Conclusion:The appeal was dismissed, affirming the Adjudicating Authority's decision that the Section 9 application was barred by limitation and that the email dated 05.05.2017 did not extend the limitation period.