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2020 (1) TMI 1247 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Time Limitation - HELD THAT:- The invoice in question is dated 10.05.2011 and the debt is not legally enforceable as the claim is time barred. Even the applicant claims that the default occurred on 10.08.2011 and the applicant sent form 3 & 4 demand notice under section 8 of the I&B Code on 09.03.2018. On perusal of the record it is observed that the application under Section 9 of I&B Code has been filed on 28th May, 2018 i.e. after more than six years from the date of accrual of cause of action - Hon'ble Supreme Court in the case of B.K. Educational Services Pvt. Ltd. vs. Parag Gupta and Associates [2018 (10) TMI 777 - SUPREME COURT] held that the Limitation Act is applicable to applications filed under section 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. "The right to sue", therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases, where, in the facts of the case. Section 5 of the Limitation Act may be applied to condone the delay in filing such applications. In the instant case the applicant has filed the application under Section 9 of the I&B Code on 28th May, 2018 after six years from the date of accrual of cause of action. Thus, the application filed under Section 9 of I&B Code is apparently time barred - In the case on hand no acknowledgement was made by the corporate debtor and/or obtained by the applicant before expiration of three years as required in Section 18 of the Limitation Act, therefore, the application is barred by limitation as it fall under article 137 of the Limitation Act which is a residuary article. Instant petition dismissed as being time barred.
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