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2021 (6) TMI 321 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - Date of default - date of NPA - Time Limitation - HELD THAT:- Section 3 of the Limitation Act, 1963 states that subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. In the present case, the Corporate Debtor has prima facie set up the Limitation as a defence in the present Application - From Part – IV of the Application, it is seen that the Financial Creditor has failed to state the Date of Default in the Application. Further, no pleadings as such has been made by the Financial Creditor as to how the present Application falls well within the period of limitation. It is found that the after the ‘Date of Default’ i.e. the date of NPA of 31.12.2007, the Financial Creditor has not placed any record or document recognized under the law to substantiate that the debt falls well within the period of limitation. This Adjudicating Authority is conscious of the decision of the Hon’ble Apex Court in the matter of SESH NATH SINGH & ANR. VERSUS BAIDYABATI SHEORAPHULI CO-OPERATIVE BANK LTD AND ANR. [2021 (3) TMI 1183 - SUPREME COURT], has held that the time spent in the SARFAESI proceedings can be excluded in terms of Section 14 of the Limitation Act, 1963 for the purpose of calculating the period of limitation for an Application filed under Section 7 of IBC, 2016. The debt as claimed by the Financial Creditor is time barred and the Financial Creditor has failed to place on record any shred of document recognized under the law to substantiate that the debt falls well within the period of limitation - this Adjudicating Authority, based on the documents filed by the Financial Creditor, comes to an irresistible conclusion that the debt on the part of the Respondent/Corporate Guarantor is time barred and as such the Application filed by the Financial Creditor is liable to be dismissed. Application dismissed on the ground of time limitation.
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