TMI Blog2020 (8) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... rson liable to pay the debt, a fresh period of limitation shall be computed from the time when the payment was made - In the instant case, the Operational Creditor claims that it has received last payment in lieu of debt from the Corporate Debtor on 30th May 2015. Alleged liability is on account of invoice dated 13th December 2011. Therefore, the limitation period cannot be extended, given the statutory provision under Section 19 of the Limitation Act as the Corporate Debtor has made part payment after expiration of the period of limitation. In this case, the Adjudicating Authority has passed the Order of admission under Section 9 of the Code, without even considering the statutory requirement of Section 9(3)(b) and 9(3)(c) of the Code. The Adjudicating Authority has even not considered the issue of limitation, though Section 3 of Limitation Act mandates to decide the issue of limitation - The Adjudicating Authority has admitted the time barred petition, though as per statutory provision of Section 3 of the Limitation Act, it was obligatory on the Adjudicating Authority to examine the issue of limitation. Appeal allowed. - Company Appeal (AT) (Insolvency) No. 1238 of 2019 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complete; it does not have requisite annexures, and Application is not in a proper format. Application is also incomplete on the ground of non-compliance of statutory provision of Section 9(3)(b) and 9(3(c) of the I B Code. The Application is marred by suppression of material fact about the pre-existing dispute. The debit notes have not been annexed, although those are crucial documents showing deficiency in the quality of goods and services rendered. The Adjudicating Authority has failed to consider that the Application is time-barred in as much as debt is claimed under invoice dated 13th December 2011, which is almost nine years old. The balance confirmation is alleged to have been signed on 01st April 2017, which is also not within the limitation, hence asserted that the acknowledgement of debt would not provide a fresh period of limitation. 4. We have heard the arguments of the Learned Counsel for the parties and perused the records. 5. The Petitioner contends that various goods were sold, supplied and delivered to the respondents raising necessary invoices in respect thereof. As per the terms of the invoice, interest @ 21% per annum was to be paid in case of delay of mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8(2)(a), the corporate debtor may, in the alternative, disclose the pendency of a suit or arbitration proceedings filed before the receipt of the demand notice. It is clear therefore, that at least in the case of an operational creditor, default must be non-payment of amounts that have become due and payable in law. The dispute or pendency of a suit or arbitration proceedings would necessarily bring in the Limitation Act, for if a suit or arbitration proceeding is time-barred, it would be liable to be dismissed. This again is an important pointer to the fact that when the expression due and due and payable occur in Sections 3(11) and 3(12) of the Code, they refer to a default which is non-payment of a debt that is due in law i.e. that such debt is not barred by the law of limitation. It is well settled that where the same word occurs in a similar context, the draftsman of the statute intends that the word bears the same meaning throughout the statute (see Bhogilal Chunilal Pandya v. State of Bombay [Bhogilal Chunilal Pandya v. State of Bombay, 1959 Supp (1) SCR 310: AIR 1959 SC 356: 1959 Cri LJ 389], Supp SCR at pp. 313-14). It is thus clear that the expression default ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abovementioned case, Hon ble the Supreme Court has held that if an acknowledgement of liability is made in writing before the expiration of the period of limitation, then the limitation period gets extended as per statutory provision under Section 18 of Limitation Act. In this case, the acknowledgement letter, which is exhibit D‟ on page 50 of the Appeal paper book, is dated 01st April 2017. The alleged amount is due on account of goods supplied on 13th December 2011 w.e.f. 12th January 2012, i.e. after the expiry of two months grace period allowed for making payment of the invoice. The first date of default is 12th January 2012, and after a lapse of about five years, acknowledgement of liability was made on 18th April 2017. Therefore, in the instant case, a fresh period of limitation will not accrue w.e.f. 01st April 2017 since three years limitation period for realization of the amount was up to 12th December 2014. However, the acknowledgement of debt is dated 01st April 2017. Thus, it is apparent that acknowledgement dated 01st April 2017 is not obtained within the limitation period. As a consequence thereof, the Petitioner/Operational Creditor cannot claim the benefit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n set up as a defence. 18. This Appellate Tribunal in case of Gauri Prasad Goenka Vs. Punjab National Bank Others in Company Appeal No. 28 of 2019, judgment dated 08th November 2019, has held that Section 3 of the Limitation Act is a mandatory provision, and it is obligatory on the Tribunal to examine the issue of limitation. Further, if the claim is barred by limitation, the Corporate Debtor cannot be held to have committed a default. 19. The Learned Counsel for the Respondent No.1/Operational Creditor submits that it has received the last payment from the Corporate Debtor on 30th May 2015 and the Appellant has acknowledged the liability on 01st April 2017. Based on the above, the Operational Creditor claims that given the acknowledgement of liability by the Corporate Debtor, through the confirmation of accounts dated 01st April 2017, the fresh period of limitation will be computed from the date of said acknowledgement. 20. Section 19 of the Limitation Act deals with the computation of period of limitation in case of part payment in lieu of debt. Section 19 of Limitation Act is as under: Section 19. Effect of payment on account of debt or of interest on legacy ..... X X X X Extracts X X X X X X X X Extracts X X X X
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