Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2021 (2) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (2) TMI 146 - NATIONAL COMPANY LAW TRIBUNAL, HYDERABADMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt or not - debt due and payable or not - time limitation - pre-existing dispute between the parties or not. Time Limitation - HELD THAT:- This Adjudicating Authority observes that the instant Application under Section 9 of IB Code, 2016 was filed on 18.11.2019, whereas the last date of invoice is 09.02.2015 and the date of default as mentioned in Part-IV of the Form - 5 in the instant Application is also 09.02.2015, which is much beyond the period of Limitation of three years - Further Hon’ble Supreme Court in Gaurav Hargovindbhai Dave v. Asset Reconstruction Company (India) Ltd. [2019 (9) TMI 1019 - SUPREME COURT] have categorically held that the proceedings under section 7 of the IBC are “an application” and not “suits”; thus they would fall within the residuary article 137 of the Limitation Act and the right to apply will arise from the date of default. It is not disputed that the instant application has been filed much after the completion of the limitation period of three years reckoned from the “date of default” as stated in the application itself. Further the Applicant herein has also failed to place on record any other document which either reflects existence of circumstances covered under Section 5 of the Limitation Act for condonation of delay or circumstances covered in Section 18 of the Limitation Act allowing extension of limitation period. Thus the applicant has not been able to prove that the instant Application is within time and not barred by limitation - this Adjudicating Authority is of the view that the Application is liable to be dismissed on the sole ground of limitation as all the invoices which are subject matter of the instant Application are beyond the time period of three years. Pre-existing dispute or not - HELD THAT:- There exists a pre-existing dispute between the parties, which was raised much prior to the issuance of demand notice u/s 8 and the same is evident from the email dated 28.04.2015 - it is evident that there exists a pre-existing dispute between the parties which was actually raised much prior to the issuance of demand notice. The instant Application U/s 9 of IB Code, 2016 is liable to be rejected on the ground of limitation and also in view of the pre-existing dispute between the parties - Petition rejected.
|