2022 (11) TMI 166 - AT - Insolvency & Bankruptcy
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - execution of the MOU - genuineness of MOU - time limitation - HELD THAT:- From the bare reading of MOU, it is apparent that the alleged past dues of the Appellant were ultimately settled to the tune of Rs. 4.50 Crores as on 31.07.2013 and it was agreed that the said sum shall carry an interest at the Bank deposit rate w.e.f. 01.08.2013 till it is actually paid. It was also agreed that the Appellant shall keep on providing the services to the Respondent and shall be entitled to 20% of the income earned from the business after 31.07.2013 - Even for the sake of arguments, if it is presumed that MOU has been duly executed between the parties yet the application under Section 9 of the Code filed by the Appellant on 13.04.2019 in respect of Rs. 4.50 Crores is beyond the period of limitation because right to apply accrued from 31.07.2013 and the period three years would be over by 31.08.2016. The argument of the Appellant that the subsequent payment made in the year 2018 by the Respondent would attract Section 19 of the Limitation Act, 1963 is totally fallacious.
The petition filed under Section 9 of the Code to claim of Rs. 4.50 Crores on the basis of the MoU dated 24.08.2013 is clearly barred by limitation as the residuary Article 137 of the Limitation Act, 1963 would apply which provides a limitation of three years from the date when the right to apply accrues.
Genuineness of the MOU - HELD THAT:- Nothing has been brought on record as evidence by the Appellant that the executant, namely, Shantilal Ratanchand Lunkad was duly authorized by the Respondent. Moreover, he is neither a director nor a key managerial personnel to bind the company by executing the MOU on its behalf without having any authority much less the resolution of the board passed in his favour.
There are no error in the impugned order, which requires any interference by this Tribunal - appeal dismissed.