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2020 (8) TMI 538 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Alleged belated application - operational debt was dated back to 05.12.2002 - Service of demand notice - time limitation - HELD THAT:- The Notices were served on the Corporate Debtor prior to the change of Registered Office i.e., on 16.04.2019. Further the learned Adjudicating Authority after filing of the Application ordered notice to be served to the new address of the Corporate Debtor and its Directors. As per the Direction of the learned Adjudicating Authority, Respondent No. 1 herein had taken steps in serving the Notice on Respondent No. 2 - the statutory Demand Notice under Section 8 and courier receipt and the delivery report evidencing proper service has already been filed. Thus, there is ample proof that the Notice had been served on Respondent No. 2 by the Respondent No. 1. Time limitation for admitting of petition - HELD THAT:- The claim is not time barred for the following reasons as stated here at. It is an admitted fact that Respondent No. 2 owe a debt to the Respondent No. 1 and failed to pay the debt to Respondent No. 1. Respondent No. 1 invoked the jurisdiction of arbitration. The Respondent No. 2 participated in the Arbitral proceeding before the Sole Arbitrator through their Counsel and it is evident from the Award of the Sole Arbitrator that the Respondent No. 2 contested the matter. The learned Sole Arbitrator had passed the Award and the same is binding on Respondent No. 2 - by passing Award by the learned Sole Arbitrator, the amount has been crystalized and by default in payment and by not honouring the Award, the amount became due and payable. The Respondent No. 1 had rightly invoked jurisdiction of the Adjudicating Authority under Section 9 of the IBC after issuance of Demand Notice as prescribed under Section 8 of IBC. As per Article 116 of the Limitation Act 1963, which is under the Second Division Appeal, the period prescribed is 90 days to file Appeal before the High Court from any Decree/Order. Against the order passed under Section 34 of the Arbitration and Conciliation Act, 1996, the only Appeal lies under Section 37 of the Arbitration and Conciliation Act 1996 before the Hon’ble High Court and the limitation for the said period is covered under Article 116 of the Limitation Act which is under the caption of Second Division appeal - In the present case, the learned XXIV Additional Chief Judge, City Court, Hyderabad, dismissed the petition on 27.01.2016 and the statutory period for filing Appeal under Section 37 of Arbitration and Conciliation Act is 90 days in case of Decree. The Appeal under Section 37 of the Arbitration and Conciliation Act excludes the limitation from 27.04.2016 i.e. 90 days from 27.1.2016 as per Article 116 of the Limitation Act and if three years is taken from 27.01.2016, and as per Article 137 of the Limitation Act, three years’ period would expire on 27.04.2019. Whilst, the Application under Section 9 of IBC filed on 03.04.2019. Accordingly, it is well within the period of limitation. The Application filed by the Applicant before the Adjudicating Authority is within the period of limitation - Appeal dismissed.
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