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2020 (6) TMI 231 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - time limitation - HELD THAT:- The 'Operational Creditor' while placing these facts before the Adjudicating Authority has clearly described the date of default as 7th October, 2013 (Page 46 of the Appeal paper book). The 'Operational Creditor' cannot escape from the factual assertion incorporated in Demand Notice and the application filed before the Adjudicating Authority. A combined reading of the Demand Notice and the application filed for triggering of 'Corporate Insolvency Resolution Process' at the instance of 'Operational Creditor' clearly establishes that the default had occurred on 7th October, 2013 and the application for triggering of 'Corporate Insolvency Resolution Process' under Section 9 of the 'I&B Code' was filed before the Adjudicating Authority on 20th April, 2018 i.e. well after the prescribed period of three years in terms of provisions of residuary clause engrafted under Article 137 of the Limitation Act, 1963 - there can be no hesitation in holding that the application filed by the 'Operational Creditor' under Section 9 of the 'I&B Code' was barred by limitation. Whether issuance of six cheques by the 'Corporate Debtor' towards the part payments of the outstanding operational debt would amount to an acknowledgment of debt thereby giving fresh lease of life to the claim of 'Operational Creditor' qua such operational debt? - HELD THAT:- In respect of the invoices raised in the year 2013 the prescribed period of limitation being three years in terms of Article 137 of the Limitation Act, 1963 expired in the year 2016 and the issuance of cheques by the 'Corporate Debtor' in the year 2017 being well beyond the prescribed period of three years would not be construed as an acknowledgment in writing within the prescribed period of limitation in terms of Section 18 of the Limitation Act, 1963. The situation would have been different if such cheques issued by the 'Corporate Debtor' towards the part payment of the operational debt had been issued prior to 7th October, 2016 as the date of default occurred on 7th October, 2013 which fact is admitted by the 'Operational Creditor' in Form 5. In this factual background and on the very basis of what was placed by the 'Operational Creditor' before the Adjudicating Authority, issuance of six cheques dated 5th December, 2017 by the 'Corporate Debtor' towards part payment of the operational debt in respect of invoices with last one raised on 2nd September, 2013 cannot be termed as an acknowledgment of debt within the ambit of Section 18 of the Limitation Act, 1963 - The inescapable conclusion is that the operational debt in respect whereof the 'Operational Creditor' sought triggering of 'Corporate Insolvency Resolution Process', was neither due nor payable in law on the date when such 'Corporate Insolvency Resolution Process' was sought to be initiated by the 'Operational Creditor'. The application under Section 9 was hit by limitation - application admitted - appeal allowed.
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