TaxTMI 
TaxTMI 
2025 (1) TMI 1794
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....ate Debtor) for the resolution of an amount of Rs. 77, 20, 941/ - as on 25.08.2018, has been dismissed on the ground of limitation. 2. In brief, Respondent vide its two letters of intent dated 19.01.2010 entered with the Appellant appointed it as subcontractor for one of the works under the main contract entered between VISA Steel Limited and the Respondent. The Appellant agreed to provide certain materials alongwith the necessary services to Respondent. The parties were performing their obligations as per the terms and conditions mentioned in the LOIs and the Appellant was issuing running invoices from time to time but it is alleged that only part payment was made. The Appellant reconciled the accounts of the Respondent and found a sum of Rs. 50,13,602 payable. The last invoice was raised on 31.11.2012 and it is alleged by the Appellant that the debt was admitted by email by the Respondent on 07.10.2016. The Appellant issued notice of demand on 07.08.2018 and ultimately on 27.09.2019 issued demand notice under Section 8 of the Code to Respondent. According to the Appellant the petition under Section 9 was filed before the Tribunal on 09.10.2019 because the Tribunal was closed b....
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....nder Section 61 of the Code. 5. The first contention raised by the Appellant is that the application having been filed on 0910.2019 is within the period of limitation of three years if the limitation is to be counted from the email dated 07.10.2016. In this regard, it is submitted that since there were Holidays from 02.10.2019 till 08.10.2019 in the Tribunal in which the application under Section 9 was filed and in support the calendar of the year 2019 of NCLT, Mumbai is appended as Annexure A3 in which 02.10.2019 has been shown as the Holiday on account of Mahatma Gandhi Birthday, 03.10.2019 and 04.10.2019 have been shown as local holidays, 05.10.2019 and 06.10.2019 being the Saturday and Sunday and 07.10.2019 and 08.10.2019 have been shown as Additional Dussehra and Dussehra Holidays. Counsel for the Appellant has submitted that as per Section 4 of the Act if the period of limitation expires during the Holiday and the suit, appeal or application is filed on the date when the court reopens then the period during which the court remained closed has to be excluded. 6. The second contention of the Appellant is in regard to exclusion of period of 10 days spent by the Appellant w....
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....ppellant on 09.10.2019. He has filed an affidavit of Jaysingh Ashar, Power of attorney holder of the Respondent Company dated 03.01.2025 in which he has averred that the petition under Section 9 was filed on 10.10.2019 vide diary no. 7074 of 2019 issued by the registry of the Tribunal. He has further averred that the defects were raised on 10.10.2019 by the registry which was alleged to have been rectified by the Appellant on 11.01.2019, it is thus therefore, submitted that the appellants cannot take the recourse to Section 4 of the Act as the petition was not filed on 09.10.2019 and in this regard, the Tribunal has also committed an error in recording in its order that the petition was filed on 09.10.2019. In support of his submissions, he has also attached annexure A i.e. certified copy of the petition filed by the Appellant before the Tribunal bearing stamp of registry in which the date of filing is mentioned as 10.10.2019 and the diary no. has been mentioned as 7074. 10. It is next argued by the Respondent that though a notice under Section 8 is required as pre-requisite to be served for a period of 10 days on the CD but the said period cannot be excluded. It is submitted th....
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....7.10.2019. The case set up by the Appellant is that the petition could not be filed on 07.10.2019 because of holidays commencing from 02.10.2019 till 08.10.2019 and could have been filed only on 09.10.2019. The case of the Appellant is that in view of Section 4 of the Act the period during which the court was closed has to be excluded. Section 4 of the Act is reproduced as under :- "4. Expiry of prescribed period when court is closed .- Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court re-opens. Explanation .- A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day." 14. There is no dispute that when the period provided for suit, appeal or application expire on a day when the court is closed then the suit appeal or application can be instituted on the date when the court reopens. 15. As per Section 4 of the Act, the Appellant deserves the protection of Section 4 of the Act but the fact is otherwise as has b....
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....e bank account of the corporate debtor; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation .- For the purposes of this section, a "demand notice" means a notice served by an operational creditor to the corporate debtor demanding 2[payment] of the operational debt in respect of which the default has occurred. Section 9: Application for initiation of corporate insolvency resolution process by operational creditor. *9. (1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub-section (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub- section (2) of section 8, the operational creditorJl may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process." 19. Section 8(1) provides that the OC may issue a notice demanding payment which may be replied within a period of 10 days of the receipt by the CD but Section 9(1) provides that application under Section 9 can on....
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.... during which a proceeding to set aside the sale has been prosecuted shall be excluded. (5) In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government, shall be excluded." 20. Section 15 has two parts. Section 15(1) deals with computation of period of limitation for any suit or application for the execution of a decree. Whereas Section 15(2) deals with computation of period of limitation for any suit of which notice has been given. In this regard, it would be relevant to mention that Section 2(j) defines period of limitation which means the period of limitation prescribed for any suit, appeal or application by the schedule and prescribed period means the period of limitation computed in accordance with the provisions of this Act. The schedule appended with the Act has three divisions in which first division deals with the suit having 10 parts in which the description of suit, the period of limitation and time from which period begins to run has been provided. Second division of the schedule deals with appeals in which the ....