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2021 (3) TMI 869 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - alleged default on the part of the Corporate Debtor in settling the dues - existence of debt and dispute or not - Financial creditors - time limitation - HELD THAT:- The claim of the applicant is not admitted by the respondent. In fact there are certain issues which should be adjudicated before ascertaining the claim of the applicant. At this stage it is immaterial to consider who will succeed. Besides this forum, in the present proceeding, is not supposed to examine the merit of the disputed claims made by the parties. Respondent has also filed criminal complaint in respect of the disputed acknowledgment. Without the said acknowledgement of account, the claim of applicant will be barred by limitation as the invoices were raised between April 2016 to August 2016 and the present petition was filed in November 2019. A person can file complaint of fraud or forgery only after knowing about the said fraudulent act. In the present matter the complaint has been filed after receiving the disputed acknowledgment of accounts. Therefore, till the outcome of the pending complaint, the claim of applicant remains disputed. A financial/operational creditor will have to be vigilant while initiating proceedings under the Code and ensure that application is within 3 years from the date of default. The creditor will be unable to take the benefit of the provisions of the Limitation Act, which provide for a fresh period of limitation to run/exclusion of time in computing limitation. The same rule shall apply for the operational creditor as well - That apart the respondent has placed copies of invoices for re-supply of materials in place of defective materials. The said invoices have been disputed by the applicant in its rejoinder. Therefore, there exist various questions which require a proper adjudication in order to ascertain the claim of applicant. The application fails and therefore the same is dismissed as barred by limitation.
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