2024 (2) TMI 1472

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....in: (Oral) Comp. App. (AT) (Ins.) No. 901 of 2020 1. This Appeal is directed against the order dated 23.09.2020 passed by the National Company Law Tribunal, Mumbai Bench - IV, in C.P. (IB) No. 476/MB.IV/2018, by which an application filed by Respondent under Section 9 of the Insolvency and Bankruptcy Code, 2016, (for short `the Code') against the Appellant for the Resolution of an amount of Rs. 52,94,356/- (principal) and Rs. 28,43,287.77/- as (interest) has been admitted. 2. Counsel for the Appellant has submitted that the application filed under Section 9 is `barred by Limitation'. He has referred to the application filed by the Respondent (CD) on the prescribed form in which the following averments have been made: "Date from ....

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....thus `barred by Limitation'. 4. It is alleged that the Appellant had issued a cheque dated 10.11.2015 for an amount of Rs. 65,54,884.87/-, which also do not attract the provision of Section 18 of the Act because if the Limitation is to be counted from 10.11.2015 of a period of three years then it would come to an end on 10.11.2018 whereas the Petition had been filed on 13.12.2018. It is also submitted that the Respondent filed a Complaint under the Negotiable Instrument Act, 1881, (`the Act of 1881') before the Court of Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai registered as CC No. 1815/SS/2016 which has been dismissed inter alia on the ground that the alleged cheque was found to be forged and fabricated. 5. On the oth....

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....ault had occurred. It is also not in dispute that the Appellant had not taken the defence either in their Reply dated 27.11.2018 filed to the Demand Notice dated 06.11.2018 or in the Reply filed to the application under Section 9. However, it is a well settled that the plea of Limitation can still be setup in Appeal in view of Section 3 of the Act which provides that `subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence'. 10. In view of the provision mentioned hereinabove of the Act, the plea of Limitation can be setup in defence even in the Appeal if it is not ....