TaxTMI 
TaxTMI 
2021 (3) TMI 222
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....Section 7 of the Insolvency and Bankruptcy Code, 2016 (in short IBC) was filed by 'Limtex Tea & Industries Limited' -Respondent No. 1 (Financial Creditor) was admitted for initiation of 'Corporate Insolvency Resolution Process' (in short CIRP) against the Company (Appellant / Corporate Debtor). 2. From the perusal of the orders dated 15-12-2020 it appears that one I.A. No. 2910 of 2020 preferred by Legal Heirs of the Late Durga Prasad Agarwal (Appellant No. 1) intimating of this Appellate Tribunal that during the pendency of this Appeal the Appellant No. 1 expired on 14.11.2020 and his Legal Heirs namely Smt. Sangita Agarwal, Ankur Agarwal and Biswanath Mondal were allowed to substitute and they have persue the Appeal. 3. The case of the Respondent No. 1 before the NCLT Kolkata Bench is that a loan of Rs. 25,00,000/- (Rupees Twenty-Five Lacs Only) was given by the Financial Creditor / Respondent No. 1 (herein) to the Corporate Debtor / Appellants (herein) through Bank on 6th June, 2011 which was duly acknowledged by the Corporate Debtor vide letter dated 6th June, 2011, i.e. loan on interest for short time and the Corporate Debtor was paying interest on the said loan. 4. T....
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.... Submissions submitted that at page 61 of the Appeal Paper Book Part -IV (Particulars of Financial Debt) is as under: 11. The Learned Counsel for the Appellants relied on a judgment of Hon'ble Supreme Court of India reported in 2020 SCC OnLine SC 647 'Babulal Vardharji Gurjar V/s Veer Gurjar Aluminium Industries Pvt. Ltd. and Anr.' wherein para 96 is as under: "................ 96. Therefore, on the admitted fact situation of the present case, where only the date of default as '08.07.2011' has been stated for the purpose of maintaining the application under Section 7 of the Code, and not even a foundation is laid in the application for suggesting any acknowledgement or any other date of default, in our view, the submissions sought to be developed on behalf of the respondent No. 2 at the later stage cannot be permitted. It remains trite that the question of limitation is essentially a mixed question of law and facts and when a party seeks application of any particular provision for extension or enlargement of the period of limitation, the relevant facts are required to be pleaded and requisite evidence is required to be adduced. Indisputably, in the present case....
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....ntioned in the Form-I by the Financial Creditor/Respondent No. 1 is 01.04.2014, thus the Application filed under Section 7 of the IBC is time barred. Aforesaid is nothing but an eye-wash as from a meaningful and holistic reading of the pleadings filed on behalf of the Financial Creditor. 17. It is further submitted that the default occurred when the cheque issued towards repayment of loan was dishonoured on 22.06.2015, which was issued by the Corporate Debtor towards repayment of the entire principle amount issued in pursuance of the understanding of the parties and the Application under Section 7 of the IBC was filed on 17.04.2018. FINDING 18. We have heard the argument of both the sides and closely scrutinised the records as well as Written Submissions filed on behalf of the parties. On the basis of the pleadings and during the course of arguments and his Written Submissions, two issues emerge: i) Whether the Application under Section 7 of the IBC filed by the Respondent No. 1 is barred by limitation? ii) Whether the cheque relied upon to establish acknowledgement of debt was genuine? Issue No. 1: From the perusal of record it appears that at page 53....
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....nt has filed I.A. before the NCLT, Kolkata Bench on 27th August, 2018 with a prayer to direct the Financial Creditor to produce the original cheque so that it may be sent to the Questioned Document Investigation Department, CID, West Bengal for verification, but no order was passed by the Adjudicating Authority and no reliance could be placed on the aforesaid document. As the Appellant disputed the cheque in question as it is disputed document, did not decide this issue and no order. So the Issue No. 2 is also decided in favour of the Appellant and against the Respondent No. 1. 19. After going through the records and having heard the counsel for the parties, we are of the considered view that the Ld. Adjudicating Authority have failed to consider the facts that Application under Section 7 of the IBC is barred by limitation and secondly, that so called cheque on which the Respondent No. 1 disputed, no reliance could be placed on the aforesaid document. The impugned order cannot be sustained in the eye of Law and in view of the Judgment of the Hon'ble Supreme Court (Supra) and is hereby fit to be set aside. The Appeal is allowed. ORDER For the reason(s) aforesaid, we set-asi....