TMI Blog2019 (10) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner Bank under Sections 433 and 434 of the Companies Act, 1956, but, no such remedy was availed by the Petitioner. It is only after the Insolvency and Bankruptcy Code came into force, the Petitioner Bank issued a notice dated 10th April 2012 and filed this Petition. There is no bar in filing application under section 7 of the Code when DRT/SARFAESI proceedings are pending, as decided in catena of cases. Hence the period consumed in DRT/SARFAESI cannot be a ground for exemption of the limitation period. Since the Limitation Act is applicable to applications filed under sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. The right to sue, therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case Section 5 of the Limitation Act may be applied to condone the delay in filing such application. The period of limitation would commence three years preceding the date of filing the petition. The petition was filed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed at page No. 53, Annexure - D to the application. 5. The applicant has submitted copy of the following documents in support of its claim: - Sl. No. Annexure Particulars Page Nos. 1 Memo of the petition 1-10 2 A Power of attorney dated 29.12.2014 11-28 3 B Extract of the details of corporate debtor from web portal of MCA 29 4 C Written communication dated 04.07.2018 29/1 29/2 5 C Colly. Sanction letters dated 16.11.2006 and 08.04.2009 along with statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntee executed by Mr. Ashok Kumudrai Jani on behalf of Chunilal and Company (Trading -Metalizing) P. Ltd. dated 23.11.2009 237-246 19 Q Deed of corporate guarantee executed by Mr. Ashok Kumudrai Jani on behalf of Gujarat Coaters and Converters P. Ltd. dated 23.11.2009 247-259 20 R Deed of guarantee dated 15.08.2007 260-269 21 S Cash credit letter dated 24.04.2012 270-281 22 T Notice dated 10.04.2012 issued by applicant to the corporate debtor under the provision of Section 13 (2) of SARFAESI Act, 2002 282-283 23 U Colly Request letter dated 09.06.2016 for one time se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for the Respondent that the Falleged debt is barred by limitation as on the date of filing of this Petition. 12. In the case on hand, admittedly, the default occurred on 30th June, 2009 (as per Part IV, Column 2 at Page 5 of the Petition). Therefore, if the period of limitation is computed from the date of default mentioned in the Petition, this Petition which is filed on 11th July, 2018, is barred by limitation. But the special feature in this case is within the period of limitation, the Petitioner Bank filed OA No. 334 of 2015 before the DRT No. 2, at Ahmedabad on 21.04.2015. Therefore, the next question is, when already the bank filed OA No. 334 of 2015 before the DRT within the period of limitation, whether the petition filed before this tribunal under Section 7 of the Code on 11.07.2018 shall be treated as a Petition within limitation or not. The contention of the learned Counsel for the Petitioner is that in view of the pendency of OA No. 334/2015 before DRT-2, the debt covered by this Petition is within time. Here, it is pertinent to mention that before Insolvency Code coming into force, the remedy of winding up was available to the Petitioner Bank u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amendment made to Section 43B in the Income-tax Act was retrospective holding: 14. As observed by G.P. Singh in his Principles of Statutory Interpretation, 4th edn. At p. 291 It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended In fact, the amendment would not serve its object in such a situation unless it is construed as retrospective.... In the present case also, it is clear that the amendment of Section 238A would not serve its object unless it is construed as being retrospective, as otherwise, applications seeking to resurrect time-barred claims would have to be allowed, not being governed by the law of limitation. 15. In view of the above, while going through the documents so filed by the petitioner, admittedly, corporate debtor executed joint documents on 10.08.2007 and 23.11.2009 and corporate debtor again admitted and acknowledged liability by letters of acknowledgement of debt/balance confirmation letters dated 24.04.2012 in favour of the petitioner. The said fact could be revealed from petitioner s own documents i.e. original Application No. 334/2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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