2020 (10) TMI 686 - NATIONAL COMPANY LAW TRIBUNAL , KOLKATA BENCH - Insolvency & Bankruptcy

Head Note / Extract:
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - time limitation - refusal of delivery - deemed delivery or not - photocopies of envelope in which the demand notice was sent - valid evidence or not. Whether this application is time barred? Would limitation in insolvency matters be saved by virtue of a decree passed in a civil suit for recovery of money? - HELD THAT:- In the present case the default has occurred over four years prior to the date of filing of the present application. The provision that may save the limitation for Applicant-Operational Creditor is acknowledgement under section 18 of the Limitation Act, 1963, however, there is nothing on record to prove any acknowledgement from the Corporate Debtor. Learned Counsel appearing for the Operational Creditor submits that limitation is saved due to a decree in a civil suit for recovery of money that was pronounced on 18.09.2018. However, the decree has been pronounced way beyond the limitation period got over. Moreover, an ex-parte decree is not an acknowledgement of debt with regards to section 18 of the Limitation Act - the application is time barred and the said ex-parte decree does not amount to acknowledgment of debt under section 18 of the Limitation Act. This issue is answered accordingly. Can refusal of delivery be accepted as deemed delivery for the purpose of section 8 of the Code? - Whether photocopies of envelope in which the demand notice was sent can be admitted as a valid evidence? - HELD THAT:- As per Rule 5(2) of IBBI (Application to Adjudicating Authority) Rules, 2016 the demand notice under section 8 of the Code has to be effectively delivered on the Corporate Debtor. The IBC being a complete code in itself and its provisions having an overriding effect on other laws, by virtue of the said Rule 5(2) there can be no presumption of delivery in matters related to Insolvency Proceedings, unlike matters otherwise than under the Code where section 27 of the General Clauses Act applies. Moreover, no explanation is forthcoming as to non production of the original envelope for our perusal - the refusal of delivery cannot be accepted as deemed delivery for the purpose of section 8 of the Code. These issues are answered accordingly. Although the Corporate Debtor in its reply affidavit has agreed to the debt and default, the claim being barred by law of limitation and for want of delivery proof of Section 8 demand notice to the Corporate Debtor, this application is not fit for admission - Application dismissed.