Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2020 (10) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (10) TMI 1294 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Time Limitation - HELD THAT:- The first invoice was raised by the petitioner on 19.12.2013 and the due date of payment was 18.04.2014 and the last invoice was raised by the petitioner on 23.01.2014 and the due date of payment was 23.05.2014 and on the basis of invoices, the date of default is the date of payment, it means since the amount was not paid on 23.05.2014, therefore, on that day the default had occurred - In view of the Article 137 of the Limitation Act, the petitioner was required to file an application within 3 years from the date, when the right to apply accrues and since due date of payment was of 23.05.2014, therefore, the petitioner was required to file the application within three years from the date of first default that is from 23.05.2014 but the present application has been filed on behalf of the petitioner on 30.06.2020, therefore, it is much after the period of three years. The documents are of the dated 18.01.2016, 07.07.2016 and 02.02.2017 and last one upon which the petitioner has placed reliance is of dated 15.12.2017 after going through these documents we noticed that, the document dated 15.12.2017 is a credit notice memo issued by the petitioner and not by the respondent, therefore, this credit note cannot be treated as an acknowledgement of debt. So far the document dated 07.07.2016 is concerned of course, in this document, there is a signature of the director of the respondent company, which is addressed to the Deutsche Bank AG regarding the payment of the pending invoices and the two invoices are referred which are of dated 26/12/2013 and if we accept that this letter will be treated as acknowledgement of debt under Section 18 of the Limitation Act then the limitation shall run from the date of acknowledgement i.e. from 07.07.2016. Even if letter is also treated as acknowledgement of debt then the limitation shall run from the date i.e. 02.02.2017 whereas the present application is filed on 30.06.2020, which is much after the period of 3 years as required under Article 137 of the Limitation Act, so, on this ground also, the present application in our considered view is barred by limitation - Application dismissed.
|