TMI Blog2020 (7) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... Pradeep R. Sethi (Technical Member) For the Petitioner : Jatin Singhal , Practising Company Secretary For the Respondent : Harsh Garg and Pulkit Goyal JUDGMENT AJAY KUMAR VATSAVAYI (JUDICIAL MEMBER) .- 1. The instant petition is filed under section 9 of the Insolvency and Bankruptcy Code, 2016, (for short hereinafter referred to as Code ) read with rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for short hereinafter referred to as Rules ). The application has been filed in Form 5 as prescribed in rule 6(1) of the Rules. 2. The petition is submitted on behalf of Bhawani Industries P. Ltd. (for short hereinafter referred to as the petitioner and/or operational creditor ). Annexure 1 is the copy of board resolution dated July 2, 2018 wherein Mr. Jai Parkash Goyal, managing director, of the petitioner, has been authorized to file the petition against M/s. Inderjit Forgings P. Ltd. There is also an affidavit in support of the contents of the application. The identification number of the petitioner-operational creditor is U00000PB1999PTC022272 and its registered address is in District Fatehgarh Sahib, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this petition be not admitted was issued to the respondent-corporate debtor on August 21, 2018 and the matter was fixed on October 8, 2018. Vide Diary No. 3693 dated September 27, 2018 the petitioner filed its affidavit of service stating therein that notice has been served to the respondent-corporate debtor. 7. The respondent-corporate debtor, filed its reply, vide Diary No. 492 dated January 31, 2019 raising various preliminary objections. It is stated in the reply that the amount claimed by the operational creditor is barred by limitation as the transactions for which the invoices have been raised are of the year 2013 with the last invoice attached by the petitioner-operational creditor dated July 8, 2013. It is submitted that two Invoices Nos. 1085 and 1086, dated July 8, 2013 amounting to ₹ 2,45,071 and ₹ 5,40,272 respectively, which are stated by the petitioner-operational creditor as unpaid, are bogus. It is further stated that no goods have been supplied by the petitioner-operational creditor as claimed in these invoices and neither these invoices have been accepted by the respondent, nor there was any delivery taken upon these invoices. It is also stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovindbhai Dave v. Asset Reconstruction Co. (India) Ltd. [2019] 8 Comp Cas-OL 250 (SC) ; [2019] SCC Online SC 1239, decided on September 18, 2019 respondent No. 2 was declared NPA on July 21, 2011. SBI filed two O. As. in the Debts Recovery Tribunal in 2012. During the pendency of the two OAs, SBI assigned the said debt to respondent No. 1 on March 28, 2014. The Debts Recovery Tribunal dismissed the OAs on June 10, 2016 as not maintainable for the reasons given therein. The special civil applications filed before the hon'ble Gujarat High Court, resulted in remanding the matter to Debts Recovery Tribunal. SLP filed against this order was dismissed on March 25, 2017. Thereafter, on October 3, 2017 respondent No. 1 filed an independent CP under section 7 of the Code. The National Company Law Tribunal applied article 62 of the Limitation Act, i. e., 12 years to enforce payment of money secured by a mortgage or otherwise charged upon immovable property and admitted the CP. The hon'ble National Company Law Appellate Tribunal, vide the impugned judgment held that the time of limitation would begin running for the purposed of limitation only on and from December 1, 2016 which is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This being the case, we fail to see how this paragraph could possibly help the case of the respondents. Further, it is not for us to interpret, commercially or otherwise, articles of the Limitation Act when it is clear that a particular article gets attracted. It is well-settled that there is no equity about limitation-judgments have stated that often time periods provided by the Limitation Act can be arbitrary in nature. This being the case, the appeal is allowed and the judgments of the National Company Law Tribunal and National Company Law Appel late Tribunal are set aside. 13. In Jignesh Shah v. Union of India [2019] 217 Comp Cas 139 (SC) ; [2019] SCC Online SC 1254, decided on September 25, 2019 the IL and FS on June 19, 2013 filed a Suit No. 449 of 2013 in the hon'ble Bombay High Court for specific performance of the letter of undertaking by La-Fin or, in the alternative, for damages. It is stated in the plaint that the cause of action for the suit arose on August 16, 2012, i. e., the day La-Fin purportedly refused to honour its obligation under the letter of undertaking. On October 21, 2016 a winding up petition was filed by IL and FS against LaFin in the Bombay H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the winding up proceedings to the National Company Law Tribunal, what is correctly stated is that the date of default is August 19, 2012 ; making it clear that three years from that date had long since elapsed when the winding up petition under section 433(e) was filed on October 21, 2016. We therefore allow Civil Appeal (Diary No. 16521 of 2019) and dis pose of Writ Petition (Civil) No. 455 of 2019 by holding that the winding up petition filed on October 21, 2016 being beyond the period of three years mentioned in article 137 of the Limitation Act is time-barred, and cannot therefore be proceeded with any further. Accordingly, the impugned judgment of the National Company Law Appellate Tribunal and the judgment of the National Company Law Tribunal is set aside. 14. In Sagar Sharma v. Phoenix ARC P. Ltd. [2019] 8 Comp Cas-OL 581 (SC) ; [2019] SCC Online SC 1332, decided on September 30, 2019 it was held that date of coming into force of the Insolvency and Bankruptcy Code, 2016, does not and cannot form a trigger point of limitation for applications filed under the Code and if the applications are filed under section 7, article 137 of the Limitation Act, alone will apply. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uary 29, 2019-(Phoenix ARC P. Ltd. v. Hotel Horizon P. Ltd. [2019] 8 Comp Cas-OL 566 (NCLT)) shall remain stayed until further orders from the National Company Law Appellate Tribunal-(Sagar Sharma v. Phoenix ARC P. Ltd. [2019] 8 Comp Cas-OL 577 (NCLAT)). Mr. Rakesh Dwivedi, learned senior counsel, wishes to raise a plea based on section 22 of the Limitation Act before the National Company Law Appellate Tribunal. We record this statement. 15. Since, admittedly, the date of default of the debt due to the petitioner was July 8, 2013 and that no acknowledgment of debt or any other circumstances are shown to extend the period of limitation beyond the period of 3 years expiring on July 8, 2016 and the CP having been filed on July 16, 2018 is clearly barred by the period of limitation. 16. In the circumstances and for the aforesaid reasons and also in view of the latest decisions of the hon'ble apex court on the point of limitation, we are of the considered view that the instant CP is barred by the period of limitation and accordingly, the same is dismissed. 17. In view of the dismissal of the CP on the point of limitation, there is no need to delve upon other issues. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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