TaxTMI 
TaxTMI 
2021 (10) TMI 298
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....the Insolvency & Bankruptcy Code, 2016, (hereinafter referred to as the "Code") in IB 630/2020, which may be read as 31.12.2016 in terms of the Mediation Order/POC, which has duly been relied upon in terms of Part-V of the said Application u/s. 9 of the Code in IB-630/2020. 3. The facts mentioned in the application in brief are as follows: i. That the Applicant M/s. Ravi Iron Limited is the Operational Creditor and the Respondent No. 1, M/s. Jia Lal Kishori Lal Pvt. Ltd. is the Corporate Debtor who placed Purchase Orders for supply of steel and issued a Post Dated Cheque (PDC) No. 286473 dt. 11.1.2008 of Rs. 27,33,000/-. ii. That the Applicant supplied Iron & Steel through proper invoices, and the receivables as on 31.03.2008, Rs. 27,01,320/-. However, the payment of the said receivables was defaulted by the Corporate Debtor and the PDC of Rs. 27,33,000/- was dishonoured. iii. That the Applicant was having a Bank Guarantee of Rs. 10,00,000/-, which was invoked and thus part payment of Rs. 10,00,000/- was realised on 02.05.2008, after which the receivables amounted to Rs. 17,01,320/-. iv. That the Applicant filed legal proceedings u/s. 138 of N....
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....be 10.01.2008 (as per original invoices) instead of 31.12.2016. The present application is being filed to pray before this Tribunal to allow to correct the date of default in Part-IV of application u/s. 9 of the Code in IB 630/2020 and the same may kindly be read as 31.12.2016. viii. That the period of Limitation from the aforesaid date of default being 31.12.2016 expire on 31.12.2019 whereas the IB 630/2020 was filed on 26.02.2020 and thus there was a delay of 56 days for which a condonation application u/s. 5 of Limitation Act 1963 was filed by the Applicant/Operational Creditor in terms of IA 2242/2020. Facts of IA/2242/2020:- 4. The present application has been filed under Section 5 of the Limitation Act, 1963 r/w. Section 238A of the Insolvency & Bankruptcy Code, 2016, (hereinafter referred to as the "Code") praying for condonation of delay of 56 days in filing application under section 9 of the Code. 5. The facts mentioned in the application are almost similar to the facts of IA/854/2021 except the following: i. That the Applicant issued a Demand Notice (Form-3) on 22/11/2019 in terms of Rule-5(1)(a) r/w. Sec. 8 of the Code at the registered office ....
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....n in terms of Article 137 of the Limitation Act, 1963 would accrue on non-appearance of the Corporate Debtor before the Court. The Corporate Debtor never appeared before the Court on 02/03/2017 and thereafter on various dates fixed, and the Applicant was under bona fide belief that on each such occasion, fresh cause of action arose and thus fresh limitation period started in terms of the provisions of the Limitation Act, 1963. 6. We have heard Ld. Counsel for the applicant and perused the averment made in the application. 7. Ld. Counsel for applicant submitted that the applicant has filed an application under Section 9 of IBC, 2016 and in part IV of that application, the applicant has mentioned the date of default is of 10.01.2008 i.e. after 30 (thirty) days credit period. 8. He further contended that the applicant in Part V of the application also enclosed the order passed by Mediation Centre, Karkardoma Courts, Delhi (hereinafter referred as 'Mediation order') dated 16.11.2015. 9. He further contended that the aforesaid mediation order was duly signed by the applicant and the corporate debtor and as per the mediation order, the corporate debtor had issued 4 (f....
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....d shall not rely on or introduce the said information in other proceedings as to: (i) views expressed by a party in the course of the mediation/conciliation proceedings; (ii) documents obtained during the mediation/conciliation which are expressly required to be treated as confidential or other notes, drafts or information given by the parties or the mediator/conciliator; (iii) proposals made or views expressed by the mediator/conciliator; (iv) admission made by a party in the course of mediation/conciliation proceedings; (v) that fact that a party had or had not indicated willingness to accept a proposal; (d) There shall be no audio or video recording of the mediation/conciliation proceedings. (e) No statement of parties or the witnesses shall be recorded by the mediator/conciliator. Rule 25 : Court to fix a date for recording settlement and passing decree, (a) On receipt of any settlement, the court shall fix a date of hearing normally within seven days but in any case not beyond a period of fourteen days. On such date of hearing, if the court is satisfied that the parties have settled their dispute(....
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....y amendment in the date of default in view of mediation order dated 16.11.2015 because under the law that agreement cannot be treated as an valid order/decree as per Rule 25 of the Mediation Rules. 21. Hence, this prayer of the applicant is hereby rejected. 22. Accordingly, with this order, the present application i.e. IA/854/2021 stands dismissed. 23. Now, coming to the next application i.e. IA/2242/2020, in which the prayer of the applicant for condonation of delay under Section 5 of Limitation Act, 1963. 24. Before considering the prayer, we would like to refer to Section 5 of the Limitation Act, 1963 and the same is quoted below:- 5. Extension of prescribed period in certain cases. Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation. The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascerta....
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....plicant has also placed reliance upon the judgment of Hon'ble Supreme Court in the matter of B.K. Education Services Pvt. Ltd. 32. On perusal of the averment made in Section 5 application, we notice that the applicant has prayed to condone the delay first on the ground that the matter was pending before the Criminal Court. Therefore, he was prevented by sufficient cause and the other ground is the applicant has made an admission before the mediation. 33. So far the mediation order is concerned, we have already discussed this issue and hold that In view of Rule 20 of the Mediation Rules, views expressed by a party in the course of the mediation/conciliation proceedings or the proposals made or views expressed by the mediator/conciliator and admission made by a party in the course of mediation/conciliation proceeding shall not rely on or introduce the said information in other proceedings. 34. Therefore, on the basis of that admission, it cannot be treated said that there is an acknowledgement of debt under Section 18 of the Limitation Act. 35. Apart from that, at this juncture, we would also like to refer Section 18 of the Limitation Act and the same is quoted below:....
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....y on or introduce the said information in other proceedings. Hence, it is not an acknowledgment under Section 25(3) of the Contract Act. 40. Now, coming to the next point, whether the pendency of the criminal proceeding before the Criminal Court can be treated as a proceeding and an exclusion of that period can be granted under Section 12 of the Limitation Act. 41. At this juncture, we would like to refer to Section 12 of the Limitation Act and the same is quoted below:- Section 12 in The Limitation Act, 1963 12. Exclusion of time in legal proceedings.-- (1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. (2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded. (3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an app....