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2019 (10) TMI 1271 - Tri - Insolvency and BankruptcyMaintainability of petition - corporate debtor failed to make repayment of its debt - existence of debt and dispute or not - time limitation - HELD THAT:- From the perusal of Section 18(1), it is apparent that acknowledgment of liability must be made before expiry of limitation period for filing the suit. If limitation has already expired, it would not revive under Section 18. In the present case case, last payment has been made in July, 2015 and e-mail has been sent in April, 2016, which is well before the expiry period of three years. Hence, first hurdle is crossed - thus, it is clear that the claim of the Corporate Debtor is not valid because such explanation clearly states that a communication may be addressed to a person other than a person related to the property or right. The Corporate Debtor has also not been able to produce any record to show that such person was not authorized to send such e-mail. Though such claim has been made, the e-mail ID contains particulars of the Corporate Debtor, hence, it cannot be said that e-mail has not been sent for and on behalf of the Corporate Debtor. Whether decision of the Hon ble Calcutta High Court in the case of Tata Steel Limited Versus Puja Ferro Alloys Limited' [2010 (9) TMI 1230 - CALCUTTA HIGH COURT ] relied on by the Corporate Debtor is applicable or not? - HELD THAT:- In view of the provisions of Section 238 and Section 3 (6) of IBC, 2016, we are of the considered view that Section 5 of the Information Technology Act, 2002 will not be applicable, hence, for this reason also the said decision cannot be said to be applicable here. Although Limitation Act, 1963 is applicable to the proceedings / appeals before the adjudicating authority but the provisions of Limitation Act have to be applied to the extent such provisions are consistent with IBC, 2016 because in Section 238 the words "as far as may be" have been used. This proposition of law is well settled by Catena of decisions. Thus, the said e-mail constitutes an acknowledgment of debt and limitation would be counted from this date. When it is so the petition is maintainable as debt is not barred by limitation - Since, compliance to the provision of Section 8 and 9 have been made hence, this Petition is maintainable on that count as well. Application admitted - moratorium declared.
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