TaxTMI 
TaxTMI 
2024 (11) TMI 918
X X X X Extracts X X X X
X X X X Extracts X X X X
....been arrayed as accused/petitioner No. 1, while its Directors are arrayed as accused/petitioner Nos. 2 and 3. 3. It is alleged in the complaint that the petitioner No.1 had approached one Pettigo Comercio Intemacional Lda ("Debenture Holders") seeking financing in the form of unlisted, collateralised, redeemable and non- convertible debentures each bearing face value of Rs 1 lakh of the aggregate nominal value of Rs 150 crores. At request of the petitioner No.1, the complainant company agreed to act as the debenture trustee with respect to the debentures, under a Debenture Trustee Agreement dated 22.10.2020, entered between petitioner No. 1 and the complainant. As per the same, petitioner No.1 drew 13 undated cheques in favour of the complainant company in discharge of its obligation with respect to the debentures. The same were handed over vide a covering letter ensuring that the said cheques would be honoured on presentment. Subsequently, the operations of the petitioner No.1 slowed down and consequently, it defaulted in paying the quarterly coupon amount of Rs. 9,37,50,000/- for the quarter ending 22.01.2022, to the complainant, which constituted a violation of the Agreement. S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....inant submitted that the respondent had sent a legal notice to the petitioners through email on 11.03.2022. While the email sent to petitioner Nos. 1 and 3 was successfully delivered, the email sent to petitioner No.2 bounced back with the error message "domain doesn't exist." As a result, since service of the legal notice was not effected upon all the accused, the complainant again sent the legal notice to all the accused by registered post on 14.03.2022. The legal notice sent by registered post was successfully delivered to petitioner Nos. 1, 2, and 3 on 16.03.2022, 16.03.2022 and 28.03.2022 respectively. It is urged that the date on which the legal notice was served by registered post shall be deemed to be the date on which service was effected upon all the accused and from the said date, the period of limitation would commence. It is submitted that the date for calculating the limitation period for filing the complaint was correctly determined based on the successful service of the legal notice by registered post to all the accused. In this manner, the limitation to file the complaint was available till 30.04.2022. Further, the complaint filed in Gurugram was registered as ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aid amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice." As the case pertains to a challenge strictly made on account of limitation, this Court also deems it appropriate to extract Section 142(1)(b) of the Act which reads as under:- "142. Cognizance of offences.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- xxx. (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138." 9. The first issue as to when would the limitation commence for filing the complaint would also encompass the issue as to whether the service of demand notice through email on 11.03.2022 on the accused company i.e. petitioner No.1 could be considered as effective service on its Director(s) i.e. petitioner No.2 herein, the service of demand notice on the other Director i.e. petitioner No.3 being not in dispute. The primary accused being the company on whose behalf the subject cheques were issued, concededly, was served with a demand notice through email on 11.03.2022 itself. The....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat petitioner No.3 was also served on 11.03.2022 itself through email. 11. Once it is held that service of demand notice on the company would be considered as a service on the other petitioners, the next issue as to what would be the starting period of limitation for filing complaint is simple calculation. Before answering this, the other contention that time spent in pursuing the complaint in Gurugram court is to be excluded in terms of Section 14 Limitation Act stands resolved by the decision of Supreme Court in Subodh S. Salaskar v. Jayprakash M. Shah reported as (2008) 13 SCC 689 where it has been categorically held that Limitation Act does not apply to proceedings initiated under NI Act. Thus the contention raised by complainant for exclusion of the time period is meritless and rejected. 12. Left with only the issue as to the commencement of limitation for filing of complaint, it is observed that the 15 day period for the accused company to make good the payment under the cheques in question came to end on 26.03.2022. The cause of action arose on 27.03.2022 and excluding that in terms of the decision of Supreme Court in Saketh India Ltd. V. India Securities reported as (199....
X X X X Extracts X X X X
X X X X Extracts X X X X
....perspective, in the light of relevant judgments, we are of the opinion that Saketh [Saketh India Ltd. v. India Securities Ltd., (1999) 3 SCC 1 : 1999 SCC (Cri) 329] lays down the correct proposition of law. We hold that for the purpose of calculating the period of one month, which is prescribed under Section 142(b) of the NI Act, the period has to be reckoned by excluding the date on which the cause of action arose. We hold that SIL Import, USA [SIL Import, USA v. Exim Aides Silk Exporters, (1999) 4 SCC 567] does not lay down the correct law. Needless to say that any decision of this Court which takes a view contrary to the view taken in Saketh [Saketh India Ltd. v. India Securities Ltd., (1999) 3 SCC 1] by this Court, which is confirmed by us, do not lay down the correct law on the question involved in this reference. The reference is answered accordingly." 14. At this juncture, notice is also taken of the decision of Co-ordinate Bench of this court in Simranpal Singh Suri v. State & Anr reported as 2021 SCC OnLine Del 236 wherein it was held that:- "12. In terms of dictum of Full Bench of Hon'ble Supreme Court in Econ Antri Ltd. (Supra), the ratio of decision in M/S Saket....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ainant has always maintained that its complaint was filed in time and offered no explanation for the delay or sought its condonation. The timelines stipulated in the Act being strict, though delay in filing the complaint being condonable under proviso to Section 142(b), the same is subject to complainant seeking its condonation and providing sufficient cause to the satisfaction of court. 17. Indisputably, the said complaint was not accompanied with any application for condonation of delay. In reply of the petitioners‟ application seeking discharge, the complainant for the first time mentioned the factum of filing of complaint in court at Gurugram and its withdrawal. The said reply was filed on 31.03.2023. However, on date of taking cognizance on 02.08.2022, no such material was available before the trial court. The complaint being filed on 28.04.2022 without offering any explanation of delay or seeking its condonation was filed beyond the period of limitation and not maintainable. In coming to the said conclusion, this Court also draws support from the decision of a Coordinate Bench in D.Babu v. M/s Bhartia Industries Ltd. reported as 2009 SCC OnLine Del 496 wherein it is st....