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Labdhi Enterprises Versus Baramati Agro Pvt. Limited

2017 (12) TMI 399 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

Winding up petition - debtor Company defaulted in making payment - Held that:- Appellant had not submitted all the information other than information forming part of the records of the transferred case, as required in terms of first proviso to Rule -5 aforesaid, we hold that the Application under Sections 433, 434 and 439 of the Companies Act which was transferred to the Tribunal stood abated in view of Rule 5 aforesaid. However, in view of the Second provision to Rule-5, as quoted above, the Ap .....

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annot be held to be barred by limitation. If there remains a defect, the Adjudicating Authority may allow the Appellant to remove the defect in terms of the proviso to Section 9 of the I&B Code. - Company Appeal (AT) (Insolvency) No. 195 of 2017 - Dated:- 10-11-2017 - Mr. S.J. Mukhopadhaya, Mr.A.I.S. Cheema And Mr. Balvinder Singh For The Appellant : Shri Suresh Dhawan, Ms. Vatsala Kak, Advocates For The Respondents : Shri P.K. Mittal and Ms. Deepika Dixit, Advocates ORDER The appellant Lobdhi E .....

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nvoices raised and received by them. During the pendency of the case before the Hon ble High Court, the Central Government, in exercise of the power conferred under sub-Sections (1) and (2) of Section 434 of the Companies Act, 2013 read with sub-Section (1) of Section 239 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as I&B Code ), by notification dated 7th December, 2016 framed Rule namely The Companies (Transfer of pending proceedings) Rules 2016 . The said Rule was .....

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pending before a High Court, and, where the petition has not been served on the respondent under rule 26 of the Companies (Court) rules, 1959 shall be transferred to the Bench of the Tribunal established under sub-section (4) of section 419 of the Companies Act, 2013 exercising territorial jurisdiction to be dealt with in accordance with Part II of the Code: Provided that the petition shall submit all information, other than information forming part of the records transferred in accordance with .....

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vided also that where a petition relating to winding up of a company is not transferred to the Tribunal under this rule and remains in the High Court and where there is another petition under clause (e) of section 433 of the Act for winding up against the same company pending as on 15th December, 2016, such other petition shall not be transferred to the Tribunal, even if the petition has not been served on the respondent. In view of the aforesaid provision, the petition under Sections 439, 434(e .....

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one of the grounds that the Appellant failed to show that the debtor Company acknowledged the debt due since last three years from 27th April, 2010 when it was payable and thereby the debt is time barred. We have heard the learned Counsel for the Appellant and learned Counsel appearing on behalf of the Respondent (Corporate Debtor). The question as to whether the Limitation Act, 1963 will be applicable for triggering incorporate resolution process under Sections 7 or 9 of the I & B Code fel .....

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d Prescription is necessary to be looked into for determining the question whether the application under Section 7 or Section 9 can be entertained after long delay, amounting to laches and thereby the person forfeited his claim. 69. If there is a delay of more than three years from the date of cause of action and no laches on the part of the Applicant, the Applicant can explain the delay. Where there is a continuing cause of action, the question of rejecting any application on the ground of dela .....

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entertained for triggering 'Corporate Insolvency Resolution Process' under Section 7 and 9 of the 'I&B Code'. ….. However, while holding so this Appellate Tribunal in M/s Speculam Plast Pvt. Ltd. Vs. PTC PTC Techno Private Ltd. also observed: ….. 59. From Article 137 of the Limitation Act, 1963, it is clear that the period of three years' is to be counted from the date right to apply accrues to a 'Financial Creditor' or 'Operational Creditor' .....

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