2023 (1) TMI 299 - AT - Insolvency & Bankruptcy

Initiation of CIRP - Extended period of limitation - It is submitted that in view of the filing of the winding up petition which was pending in the Kolkata High Court, Appellant was entitled to take benefit of Section 14 of the Limitation Act, 1963 - HELD THAT:- Part-V of the Section 7 Application pertaining to Particulars of Financial Debt (Documents, Records and Evidence of Default), there are no mention of any material or any document on basis of which benefit of Section 14 of the limitation can be claimed. In Section 7 Application, the filing of winding up petition was in fact concealed. Law is well settled that for taking benefit of extension of limitation under the limitation act, 1963 there has to be relevant materials brought on record to extend the benefit of Section 14 of the limitation Act, 1963.

The Hon’ble Supreme Court in the matter of BABULAL VARDHARJI GURJAR VERSUS VEER GURJAR ALUMINIUM INDUSTRIES PVT. LTD. & ANR. [2020 (8) TMI 345 - SUPREME COURT] laid down that question of limitation is essentially a mixed question of law and facts and when a party seeks application of any particular provision for extension or enlargement of the period of limitation, the relevant facts are required to be pleaded and requisite evidence is required to be adduced.

The benefit of Section 14 was extended because prima facie it was proved that proceedings under SARFAESI Act were without jurisdiction. Present is not a case where it is even contended that winding up petition filed by the Appellant before the Kolkata High Court were without jurisdiction proceeding or were terminated by the defect of a like nature.

The proceedings benefit of which is sought to be claimed, it has to be proved that proceedings are prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature is unable to entertain it. Present is not a case where winding up petition filed in the Kolkata High Court was suffering from any defect of jurisdiction or other cause of a like nature. The foundational fact for taking benefit of Section 14 of the Limitation Act being not laid down by the Financial Creditor, no benefit under Section 14 can be claimed by the Appellant - the Adjudicating Authority did not commit any error in rejecting section 7 application filed by the Appellant.

Appeal dismissed.