TaxTMI 
TaxTMI 
TaxTMI 
2021 (11) TMI 732
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....the ground of Limitation. While dismissing the Application, the Learned Adjudicating Authority observed as follows:- "8. We shall deal with the contentions raised by the Corporate Debtor. On perusal of the proceedings of the Suit filed before the Court of the Civil Judge (Senior Division)-1, Ranchi by the Corporate Debtor it is seen that the suit has been filed on 06.06.2019 and the demand notice was sent on 07.05.2019 through email and 09.05.2019 by hand, hence it is clear that the suit has been filed after the demand notice has been sent, the suit doesn't form a pre existing dispute. 9. Further, on the point of parallel proceedings the Hon'ble NCLAT has held in M/s Annapurna Infrastructure Pvt. Ltd. and anr. Vs. M/s SORIL Infra Resources Ltd, Company Appeal (AT) (Insolvency) No. 32 of 2017 that pendency of execution petition of an arbitral award is no bar to file a petition under IBC. 10. With regard to the point of limitation, it is seen that there are internal notings made by the Corporate Debtor in its office files which is being referred to and relied upon as an acknowledgment of debt by the Operational Creditor. Even if the said document is taken as an acknowledgme....
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.... The amendment of s. 238A would not serve its object unless it is construed as being retrospective. Otherwise, applications seeking to resurrect time-barred claims would have to be allowed, not being governed by the law of limitation. It is clear from a reference to the Insolvency Law Committee Report of March, 2018, that the legislature did not contemplate enabling a creditor who has allowed the period of limitation to set in to allow such delayed claims through the mechanism of IBC. The same issue has been dealt with in Jignesh Shah and Ors. v. Union of India (UI) and Ors. 2019 (13) SCALE 61, Sagar Sharma & Anr. v. Phoenix ARC Pvt. Ltd. & Anr. Civil Appeal No. 7673 of 2019, and Gaurav Hargovindbhai Dave v. Asset Reconstruction Company (India) Ltd. and Ors., MANU/SC/1301/2019. 11. We, therefore hold that this application is time barred. 12. C.P. [IB] No. 1040/KB/2019 is hereby dismissed on the above grounds." 2. Submissions on behalf of Learned Counsel appearing for the Appellant: Learned Counsel for the Appellant strenuously contended that the Arbitral Award was passed in the favour of the Appellant on 14.02.2008, which was not challenged, but was duly implemented. The d....
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....h got dismissed on 06.10.2018 and as no challenge was preferred, the Limitation start on 06.10.2018. Hence, the Adjudicating Authority had erroneously dismissed the Application as barred by Limitation without taking into consideration the file notings of 2010. 3. Submissions on behalf of Learned Sr. Counsel appearing for the Respondent: The Learned Sr. Counsel vehemently submitted that the Application under Section 9 of the Code is not maintainable and severely hit by law of Limitation as the 'date of default' in the Notice under Section 8 of the Code is mentioned as 14.02.2008. There is a 'Pre-Existing Dispute' between the 'Corporate Debtor' and the Appellant which is being adjudicated by different Courts of law. The Appellant had raised the dispute by filing a Commercial Execution Case No. 11 of 2018 before the Learned Commercial Court, Ranchi and the same was pending for adjudication subject to serious dispute raised by the 'Corporate Debtor'. In Part IV of the Application under Section 9 of the Code dated 04.06.2019, the 'date of default' was once again mentioned as 14.02.2008 and therefore the Adjudicating Authority has rightly observed in the Impugned Order dated 18.....
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....indbhai Dave' Vs. Asset Reconsturction Co. (India) Ltd., CIVIL APPEAL No. 4952 of 2019 (2019) 10 SCC 572. 'Sagar Sharma' (2019) 10 SCC 353 'Jignesh Shah' Vs. 'Union of India', (2019) 10 SCC 750. 'Babulal Vardharji Gurjar' Vs. 'Veer Gurjar Aluminium Industries Pvt. Ltd. & Anr.', 2020 SCC OnLine SC 647. Learned Counsel concluded that for an amount which fell 'due and payable' on 14.02.2008, the Application filed on 04.06.2019 is clearly barred by Limitation keeping in view the ratio of the Hon'ble Supreme Court in the aforenoted Judgements. Assessment: 4. It is not in dispute that the Arbitral Award was first passed on 14.02.2008 in favour of the Appellant and against the 'Corporate Debtor'. The Award was accepted on 30.04.2008 and the decision of the Board was conveyed to the Appellant herein (exhibit as Annexure A-3). The implementation was conveyed to the Appellant herein vide letter dated 30.04.2008 based on the Award dated 14.02.2008. At this juncture, it is relevant to reproduce this communication:- 5. It is also an admitted fact that an amount of Rs. 10,75,46,964/- was paid to the Appellant herein vide cheque dated 10.05.2008 (Annexure A-5). 6. Subsequently Jharkha....
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....ine SC 543, has observed as follows:- "138. A final judgment and order/decree is binding on the judgment debtor. Once a claim fructifies into a final judgment and order/decree, upon adjudication, and a certificate of Recovery is also issued authorizing the creditor to realize its decretal dues, a fresh right accrues to the creditor to recover the amount of the final judgment and/or order/decree and/or the amount specified in the Recovery Certificate. 139. The Appellant Bank was thus entitled to initiate proceedings under Section 7 of the IBC within three years from the date of issuance of the Recovery Certificate. The Petition of the Appellant Bank, would not be barred by limitation at least till 24th May, 2020. 140. While it is true that default in payment of a debt triggers the right to initiate the Corporate Resolution Process, and a Petition under Section 7 or 9 of the IBC is required to be filed within the period of limitation prescribed by law, which in this case would be three years from the date of default by virtue of Section 238A of the IBC read with Article 137 of the Schedule to the Limitation Act, the delay in filing a Petition in the NCLT is condonable under Se....
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.... (now Bank of Baroda)' (Supra). 9. In 'Babulal Vardharji Gurjar' Vs. 'Veer Gurjar Aluminium Industries Pvt. Ltd. & Anr.' 2020 15 SCC 1, the Hon'ble Apex Court while discussing the issue of Limitation has observed that not even the foundation is laid in the Application for suggesting any other 'date of default'. Limitation is essentially a mixed question of law and facts and the material evidence on record establishes that the Appellant got the knowledge of the deduction for the very first time only after receipt of information vide RTI Application on 06.08.2016. It is pertinent to mention that an amount of Rs. 2,47,16,999/- was paid admittedly to the Appellant herein with a cheque dated 31.03.2016. Also Section 19 of the Limitation Act, 1963 is applicable here. 10. The part payment made on 31.03.2016 further extends the 'date of default' keeping in view the facts and circumstances of the attendant case on hand. The challenge to the Arbitral Award was dismissed on 06.10.2018. The recovery made in 2016 was provisional, subject to the challenge against the Arbitral Award, which got dismissed on 06.10.2018 and the same was not challenged further. The Application was filed on 04.06.20....