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2020 (11) TMI 1056 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Financial Debt - existence of debt and dispute or not - Applicability of section 18 and section 19 of Limitation Act - HELD THAT:- Since, much reliance has been placed by the Ld. Counsel for the petitioner on the reply filed by the Corporate Debtor in pursuant to the legal notice issued under Section 138 of the NI Act, therefore, it is deemed fit to consider this document at first and on going through the reply filed by the Corporate Debtor in response to the legal notice issued under Section 138 of the NI Act and it is noticed that at page 376, it is mentioned that Corporate Debtor had proposed for settlement of the account and on the basis of that Ld. counsel for the petitioner submitted that the Corporate Debtor has acknowledged the debt by sending the reply to the Legal Notice issued under Section 138 of the NI Act and it is also noticed that in its reply to the Legal Notice issued under Section 138 of the NI Act, in para 6 of the reply, which is at page 374 of paper book, it is mentioned that undated cheques were handed over to the petitioner and that is the reasons the date, when the cheques were handed over to the petitioner are not disclosed in the notice. Apart from that, in the case of Yogesh Kumar Jaswantlal Thakkar Vs. India Overseas Bank and Ors [2020 (9) TMI 582 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] passed by Hon’ble NCLAT, where it was held that Section 19 of the Limitation Act is not applicable so far the IBC is concerned. Applicability of Section 18 of the Limitation Act - it is mentioned in the reply dated 18.03.2017 that he is ready to settle the statement of accounts, which amounts to the acknowledgement of debt - HELD THAT:- In part-IV, the date of default is not mentioned. Since the last agreement was executed on 30.06.2013, therefore, the payments on the basis of that agreement must be made within 3 years from the date of last agreement, which was executed on 30.06.2013 and acknowledgement also must have been made within that period. Even if the contention of the petitioner is accepted that reply which was given in response to the legal notice under Section 138 of NI Act will be treated as as an acknowledgement of debt, the same has also been made after three years from the date of execution of last ‘agreement, whereas in view of Section 18 of the Limitation Act, the acknowledgement must be made within the period of limitation. hence, the contention of the Ld. Counsel for the petitioner that the present application is within time, cannot be accepted. Since the present application is barred by limitation, therefore, the notice need not be issued upon the respondent rather same is liable to be Dismissed - application dismissed.
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