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2020 (8) TMI 459 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - It is the stand of the 2nd Respondent/ Bank that it had only put part of the ‘Secured Asset’ to an auction, which was let out by the Appellant to the Charak Hospital & Research Centre and the remaining was not put to Auction - Time Limitation - HELD THAT:- The provisions of I&B Code override other Laws. At the same time, the IBC proceedings cannot be initiated based on time barred claims. Regardless of when IBC came into force, if more than three years had elapsed from the date of default, a creditor is not entitled to maintain an Application under the Code. IBC is not a litigation and that an ‘Adjudicating Authority’ is not deciding a money claim or suit. In short, an ‘Adjudicating Authority’ is not a Court of Law. Time Limitation - HELD THAT:- The 1st Respondent/ Company – ‘Corporate Debtor’s’ loan account was declared NPA by the 2nd Respondent on 31.03.2004. A Recall Notice dated 11.07.2007 was issued by the 2nd Respondent/ Bank to the Corporate Debtor for recalling the facility and demanding a sum of ₹ 17,94,54,108.73/-. The Application before the Tribunal was filed on 11.12.2018. The Application was served on the Corporate Debtor vide letter dated 11.03.2019. The Section 7 Application filed by the 2nd Respondent/ Bank in the year 2018 is a belated one because of the simple reason that in the present case the declaration of NPA or default on 31.03.2004 had occurred over three years prior to the date of filing of the Application and hence, this Tribunal comes to an inescapable conclusion that the Application filed by the 2nd Respondent/ Bank (under Section 7 of the Code) before the Adjudicating Authority is hit by Limitation, as per Article 137 of the Limitation Act, 1963. This Tribunal comes to an inevitable conclusion that Application filed under Section 7 of the Code by the 2nd Respondent/ Bank before the Adjudicating Authority (NCLAT), Mumbai-II is barred by Limitation and that the Adjudicating Authority had erred in admitting the Application, which needs to be set aside by this Tribunal and accordingly this Tribunal set-aside the impugned order dated 16.12.2019, in the interest of justice. Application dismissed - The matter is remitted to the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench-II for determining the ‘fee and costs’ of the ‘Corporate Insolvency Resolution Process’ as incurred by him, which is to be borne and paid by the 2nd Respondent/ Bank (Financial Creditor).
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