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TMI Blog2017 (5) TMI 1602X X X X Extracts X X X X X X X X Extracts X X X X ..... TE ON WHICH THE DEFAULT OCCURRED Amount Rs. 71,93,843/- (Rupees Seventy One Lakhs Ninety Three Thousand Eight Hundred and Forty Three) from October 2012 onwards 2 Thus, the preliminary question, which arises for our consideration, is whether insolvency process can be triggered in a matter where the default had occurred beyond a period of 3 years and the claim has become time barred on account of period of limitation prescribed by the Limitation Act, 1963 or by virtue of rule of prudence developed by the Courts. The principal Bench of this Tribunal in the case of M/s. Deem Roll-Tech Limited vs. M/S. R.L. Steel & Energy Limited [Company Application No. (l. B.)24/PB/2017] has already taken the view that the period of limitation would be applicable as the claim made by the Operational Creditor was barred by limitation and was being made after the expiry of period of three years. The views of the Principal Bench are evident from the following paras which read thus: "Be that as it may on a perusal of the records available before us, particularly taking into consideration the invoices as detailed above annexed as Annexure - 3 (colly) to the petition coupled with the Copy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or services including employment or a debt in respect of the debt in respect of repayment of dues arising under any law for the time being in force and payable to the central government, state government or any local authority and an operational creditor is defined in sec 5(20) of IBC means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred. As per section 60 of IBC this Tribunal has been designated as adjudicating authority in relation to corporate persons. Further as per clause (c) sub-Section (5) section 60, this tribunal is enjoined with the jurisdiction to entertain or dispose off any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under this code. Sec 255 of IBC provides that the Companies Act 2013 shall be amended in the manner specified in the eleventh schedule to IBC and a perusal of the eleventh schedule of IBC discloses the amendments made to the Companies Act 2013 of several provisions though not section 433 of the Act wherein specifically the provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree years. In the case of L.S. Synthetics Ltd., (supra) the issue raised was whether the provisions of Limitation Act, 1963 would apply to the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992. 5. In that case a notification was issued on 2.7.1992 by the Custodian 5. notifying Respondent No. 1 as a notified party in terms of the provisions of the Special Courts (Trial of Offences Relating to Transactions in Securities) Act, 1992 (for short "the 1992 Act"). The Appellant had obtained short-term loans amounting to Rs. 14.25 lakhs from the notified party during the period 1.4.1991 to 6.6.1992 as specified in the 1992 Act. The Custodian called upon the appellant to furnish particulars of the said loan. The Appellant accepted the said amount to be outstanding as on 30.6.1992 in the books of Respondent No. 1 payable to him. On the said amount of loan, interest at the rate of 21% per annum was payable. The Custodian directed the appellant to deposit the principal amount. On failure of the appellant to comply with the said direction, Respondent No. 1 initiated proceeding before the Special Court praying for a direction upon the appellant to pay to the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed or a proceeding is initiated for recovery of an amount and not where a property is required to be applied towards the claims pending before the Tribunal for the purpose of discharge of the liabilities of the notified person in terms of Section 11 of the 1992 Act. A Special Court having regard to its nature and functions may be a court within the meaning of Section 3, Evidence Act, 1872 or Section 3 of the Limitation Act, 1963 but having regard to its scope and object and in particular the fact that it is a complete code in itself, the period of limitation provided in the schedule appended to the Limitation Act, 1963, will have no application. Section 13 of the said Act provides for a non- obstante clause which has been used as a devise to modify the ambit of provisions of law mentioned therein or to override the same in the specified circumstances. In a case of conflict between the said Act and any other Act, the provisions of the former shall prevail. 8. It is thus, evident that the issue raised in the case of L.S. Synthetics Ltd. (supra) is entirely different than the one raised before us. The distinction is marked by italics. In the present case, there is no statutory op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed by the Limitation Act, 1963. 11. Even otherwise the rule of prudence would require that public policy of law must be given effect which is widely followed namely it does not come to the rescue of those who sleep over their rights. It come to the help of those who are vigilant. Before a Constitution Bench of the Hon'ble Supreme Court in the case of State of Madhya Pradesh v. Bhailal Bhai & ors. AIR 1964 SC 1006, the question arose whether any period of limitation can be implied for a litigant to file a writ petition. Their lordships of Hon'ble the Supreme Court held that the maximum period of limitation prescribed for filing a writ petition cannot be more than the one prescribed for filing of a civil suit. The judgment has been followed and applied umpteen times. Obviously, the aforesaid principle of prudence has been laid down when there is no limitation prescribed in the Constitution under Article 226 or Article 32 of the Constitution. When the period of limitation was absent for filing of a writ petition, Hon'ble the Supreme Court has taken the view that the period of limitation as prescribed in the Limitation Act would be the maximum. Constitution is supreme and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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