TaxTMI 
TaxTMI 
2021 (3) TMI 227
X X X X Extracts X X X X
X X X X Extracts X X X X
....ated 13.02.2020 in CP (IB) 1016/IBC/MB/2019 passed by National Company Law Tribunal, Mumbai Bench whereby and where under, an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short IBC) was filed by 'Mr. Vijal A. Jain' -Respondent No. 1 (Operational Creditor) was admitted for initiation of 'Corporate Insolvency Resolution Process' (in short CIRP) against the Company (Appellant / Corporate Debtor) and have appointed one Mr. Vimal Kumar Agarwal as Interim Resolution Professional. 2. The case of the Respondent No. 1 before the NCLT, Mumbai Bench is that the Appellant /Corporate Debtor committed default in payment of the dues to the Respondent No. 1 / Operational Creditor invoking the provisions of Section 8 and 9 on Insolvency and Bankruptcy Code read with Rule 6 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. 3. The Respondent No. 1 / Operational Creditor is a proprietorship concern represented by its proprietor, Mr. Vijal A. Jain- Respondent No. 1 who is sold, supplied and delivered goods to the Appellant (herein). 4. The Appellant / Corporate Debtor is a company incorporated on 25.04.1988 bearing CIN: U99999MH198....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Respondent No. 1 before the NCLT, Mumbai Bench. In which reply it has been stated that the Operational Creditor, with malicious intention had created a cause of action vide alleged issuance of notice dated 16.10.2018, which itself reflects that the alleged dispute pertains to the years 2014 & 2015. The said demand notice is not received by the Corporate Debtor and therefore the present proceeding is time barred and is filed after expiry of limitation period of three years. 12. The Adjudicating Authority after hearing the parties have admitted the Application under Section 9 of the IBC and appointed one Mr. Vimal Kumar Agarwal as Interim Resolution Professional and hence the Appeal. Submissions on behalf of the Appellant 13. The Learned Counsel for the Appellant during the course of argument and his Written Submissions have stated that the present claim of default, on the basis of which impugned order has been passed in the Application under Section 9 of the IBC filed by the Respondent No. 1/Operational Creditor is clearly barred by limitation under Section 238A of IBC 2016 read with Article 137 of Limitation Act, and hence present Appeal. 14. It is further submitted tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erson giving the cheque in case the cheque is honoured. In the present case the cheque was realised and the question is what is the date of payment in the circumstances of this case for the purpose of s. 20 of the Limitation Act. Section 20 inter alia lays down that where payment on account of debt is made before the expiration of the prescribed period by the person liable to pay the debt, a fresh period of limitation shall be computed from the time when the payment was made. Where therefore the payment is by cheque and is conditional, the mere delivery of the cheque on a particular date does not mean that the payment was made on that date unless the cheque was accepted as unconditional payment. Where the cheque is not accepted as an unconditional payment, it can only be treated as a conditional payment. In such a case the payment for purposes of s. 20 would be the date on which the cheque would be actually payable at the earliest, assuming that it will be honoured. Thus if in the present case the cheque which was handed over on February 4, 1954 bore the date February 4, 1954 and was honoured when presented to the bank the payment must be held to have been made on February 4, 1954,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d his Reply Affidavit at page 101 of the Appeal Paper Book filed before the Hon'ble NCLT where it is stated that "in order to create a cause of action vide alleged issuance of Notice, dated 16.10.2018, which itself reflects that the alleged dispute pertains to the years 2014 and 2015, however, the said demand notice is not received by the corporate debtor and therefore the present proceeding is time barred and is filed after the limitation period of three years". 22. It is further submitted that the demand made by the Learned Counsel for the Appellant before the Hon'ble NCLT in their reply it is not correct to show that the demand under Section 8 of the IBC was not complied. 23. Learned Counsel for the Respondent No. 1 further submitted that that the Ld. Adjudicating Authority have taken note of the fact that cheque bearing no. 110088 dated 12.01.2016 issued by Corporate Debtor for amounting of Rs. 44,298/- was dishonoured and the legal proceeding under Section 138 of Negotiable Instrument Act. was initiated. 24. It is further submitted that the Ld. Adjudicating Authority taking note of this fact and also the fact that demand notice dated 16.10.2018 was duly served upon Ap....