TaxTMI 
TaxTMI 
2024 (9) TMI 1896
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed default which was taken as to be the foundation for the purposes of initiation of the proceedings under Section 9,was falling beyond the prescribed period of limitation after inclusion of period as prescribed under Section 18 of the Limitation Act, 1963, which has been made applicable for the purposes of initiation of the Sec. 9 proceedings. 3. Brief facts of the case are given below: The Corporate Debtor M/s. Shree Krishna Polystrap Pvt. Ltd. is a registered Company, incorporated and Registered under the provisions of the Companies Act, 1956, on 25.03.2009, and listed in the Register of Companies maintained by the Registrar of Companies. 4. The Operational Creditor has submitted that, he has delivered certain goods amounting to Rs. 34,98,706/- in July-August 2012, to the Corporate Debtor as against 3 Orders given by the Corporate Debtor on 18.07.2012, 30.07.2012 and 16.08.2012 and after making supplies, he has raised 3 Invoices of Rs. 6,16,540/- Rs. 11,34,614/- and Rs. 17,43,502/-, totaling Rs. 34,98,706/- against the Corporate Debtor. Despite supplying goods against the aforesaid Orders and despite raising 3 Invoices, the Corporate Debtor had not remitted the amount a....
X X X X Extracts X X X X
X X X X Extracts X X X X
..../ Corporate Debtor, has confirmed the balance outstanding dues to be paid to him as on 31.03.2016, acknowledged the same and has never disputed the said amount due. 10. It is contended by the appellant herein that, once the Corporate Debtor has acknowledged the liability for payment of the balance amount on 31.03.2016, thus initiation of the proceedings under Section 9 of I & B Code, 2016, on 29.03.2019 would be falling well within the ambit of limitation as prescribed under Sec. 9 of the I & B Code, 2016, owing to the fact that the balance amount due stood acknowledged by the Corporate Debtor. 11. The said application was considered by the learned Adjudicating Authority, and has been rejected by the Impugned Judgment of 05.05.2020. 12. The learned Adjudicating Authority while dealing with the issue pertaining to the determination of financial liability, due to be paid by the Corporate Debtor, had considered the implications of Form 4 Notice, which was issued on 07.01.2019 and the alleged plea taken by the operational creditor with regards to the balance confirmation issued by the Corporate Debtor and the contents of the various invoices which were relied on by the Operati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e acknowledgment would be one of the determining factors for the purpose of initiation of Section 9 application of I & B Code, 2016. 16. The learned Adjudicating Authority while considering the said plea with regards to the implications of the acknowledgement dated 31.03.2016, with regard to the date on which, the proceedings under Sec. 9 stood initiated i.e. 29.03.2019, has observed that, even according to the own case of the Operational Creditor as pleaded, the initiation of the proceedings under Sec. 9 happens to fall much beyond the period of limitation, the acknowledgment is without being based upon any credible documents on record, and also the date of acknowledgement falls beyond the 3 year limitation period from 22.11.2012 when the debt fell due, and accordingly has held the proceedings to be apparently barred by limitation and accordingly dismissed the same. 17. After having considered the contentions raised by the appellant in the appeal with regards to the factum of the modalities which had been adopted by the learned Adjudicating Authority, for the purposes of determining the aspect of limitation, the inferences which has been drawn by the learned Adjudicating Aut....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y place about the so-called acknowledgment or any other date of default. 35.1. Therefore, on the admitted fact situation of the present case, where only the date of default as "8-7-2011" has been stated for the purpose of maintaining the application under Section 7 of the Code, and not even a foundation is laid in the application for suggesting any acknowledgment or any other date of default, in our view, the submissions sought to be developed on behalf of Respondent 2 at the later stage cannot be permitted. It remains trite that the question of limitation is essentially a mixed question of law and facts and when a party seeks application of any particular provision for extension or enlargement of the period of limitation, the relevant facts are required to be pleaded and requisite evidence is required to be adduced. Indisputably, in the present case, Respondent 2 never came out with any pleading other than stating the date of default as "8-7-2011" in the application. That being the position, no case for extension of period of limitation is available to be examined. In other words, even if Section 18 of the Limitation Act and principles thereof were applicable, the same wo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 18 of the Limitation Act speaks of an acknowledgment in writing of liability, signed by the party against whom such property or right is claimed. Even if the writing containing the acknowledgment is undated, evidence might be given of the time when it was signed. The explanation clarifies that an acknowledgment may be sufficient even though it is accompanied by refusal to pay, deliver, perform or permit to enjoy or is coupled with claim to set off, or is addressed to a person other than a person entitled to the property or right. "Signed" is to be construed to mean signed personally or by an authorised agent.'' 21. Since the said aspect has not been established by any evidence on record as observed in the finding recorded by the learned Adjudicating Authority in para 9 of the said Impugned Order, because the so-called affirmation of the balance amount by an order of 31.03.2016, has not been confirmed by way of a written document placed on record by the Operational Creditor, the learned Adjudicating Authority, has rightly held that the aforesaid plea in respect of the acknowledgement confirming the debt due of 31.03.2016, cannot be accepted until and unless the same stands esta....