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2021 (11) TMI 732 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- It was only on 06.08.2016 after the receipt of the information under RTI, that the Appellant got the knowledge of recovery for the very first time and filed the Section 9 Application on 04.06.2019, well within three years - The Hon’ble Supreme Court in B.K. EDUCATIONAL SERVICES PRIVATE LIMITED VERSUS PARAG GUPTA AND ASSOCIATES [2018 (10) TMI 777 - SUPREME COURT] has observed that the right to sue accrued on the ‘date of default’. This decision has to be understood and interpreted keeping in view the factual matrix of each case. In the instant case the Respondent/’Corporate Debtor’ does not deny the main contention of the Appellant that the decision with respect to recovery and deduction of the Arbitral amount was never communicated to the Appellant. Even in their reply before the Adjudicating Authority and before this Tribunal and in the submissions filed, the ‘Corporate Debtor’ is completely silent with respect to this communication having been made to the Appellant herein - the date of knowledge of happening of the default is a relevant date. The part payment made on 31.03.2016 further extends the ‘date of default’ keeping in view the facts and circumstances of the attendant case on hand. The challenge to the Arbitral Award was dismissed on 06.10.2018. The recovery made in 2016 was provisional, subject to the challenge against the Arbitral Award, which got dismissed on 06.10.2018 and the same was not challenged further. The Application was filed on 04.06.2019 which is within three years of this date. The Hon’ble Supreme Court in DENA BANK (NOW BANK OF BARODA) VERSUS C. SHIVAKUMAR REDDY AND ANR. [2021 (8) TMI 315 - SUPREME COURT] has noted that once a recovery certificate is issued authorising the Creditor to realise its decretal dues, a fresh right accrues to the Creditor to recover amount of the final Judgement/Order/decree - In the instant case, the challenge to the Arbitral Award was dismissed on 06.10.2018, and hence has attained finality, the part payment was made on 31.03.2016 and therefore the Application filed on 04.06.2019 is not barred by Limitation. The Learned Adjudicating Authority shall proceed in accordance with law keeping in view the timelines under the Code - Appeal allowed - decided in favor of appellant.
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