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TMI Blog2020 (8) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... ANTHI NARAHARI, MEMBER (TECHNICAL) The Appeal preferred by the Corporation Bank aggrieved by the order dated 25.09.2019 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi in (IB)-538(ND) 2019. 2. The Appellant filed an Application under Section 7 of Insolvency and Bankruptcy Code, 2016 (in short 'IBC') before the Adjudicating Authority against the Respondent No. 1 (herein)-Corporate Debtor seeking initiation of Corporate Insolvency Resolution Process (in short 'CIRP'). The Application filed in Statutory Form-1, as per rules, claiming an amount of Rs. 31,63,29,782.20 on 31.12.2018. The Appellant contended that they have provided Term Loan Facility and Cash Credit Facility to the Corporate Debtor- 1st Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The date of default averred by the Petitioner in Part-IV of the application is 23.05.2014. That Section 238A of the Insolvency and Bankruptcy Code 2016, makes the Limitation Act, 1963 applicable to the Code, reads as follows: "238A. The provisions of the Limitation Act, 1963 (36 of 1963) shall, as far as may be, Company Appeal (AT)(Insolvency) No. 1184 of 2019 Page 5 of 12 apply to the proceedings or appeals before the Adjudicating Authority, the National Company Law Appellate Tribunal, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal, as the case may be." 12. Here it is worthwhile to refer to the Judgement of the Hon'ble Supreme Court in the matter of "B.K. Educational Services Pvt. Ltd. Vs. Parag Gupta & Associa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the Respondent filed their Reply Affidavit before this Tribunal taking similar stand as taken before the Adjudicating Authority and vehemently opposed the Appeal for the reason that the Application filed by the Appellant-Bank is time barred and the Appeal needs to be rejected. 6. Heard learned Counsel for the respective parties, perused the pleadings, citations and Written Submissions filed in their support. 7. Learned Counsel for the Appellant in its grounds of Appeal and questions of law raised that whether the Application filed under Section 7 IBC can be rejected on the ground of limitation, whether the Impugned order dated 25.09.2019 passed by the Adjudicating Authority is in accordance with the provisions of Section 3(6)(a), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application." .. 8. Further, Hon'ble Supreme Court in the matter of "Sagar Sharma & Anr. Vs. Phoenix Arc Pvt. Ltd. & Anr." in Civil Appeal No. 7673 of 2019 dated 30.09.2019 at paragraph-3 held" .. "3. Article 141 of the Constitution of India mandates that our judgments are followed in letter and spirit. The date of coming into force of the IBC code does not and cannot form a trigger point of limitation for applications filed under the Code. Equally, since "applications" are petitions which are filed under the Code, it is Article 137 of the Limitation Act which will apply to such applications." 9. In view of the judgment of the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , such question deciding claim does not arise. Further, Section 3(11) of IBC is concerned it defines "debt" which means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt; Section 3(12) of IBC defines "default" means, non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not (paid) by the debtor or the corporate debtor, as the case may be. Even we are not deciding the issue of debt and default of the Appellant. Further the learned Counsel for the Appellant relied upon Section 5(6)(a) of IBC which define "dispute" includes a suit or arbitration proceeding relating to (a) the existence of the amount of debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor an Unsecured Creditor and a Decree Holder. Whilst the Appellant cannot take a stand since the default has occurred, the Adjudicating Authority on satisfaction, the Application should be admitted automatically. Before admission of the Application either under Section 7 or 9 of IBC, one has to file the Application within a period of limitation as prescribed under Section 238A of IBC. The Adjudicating Authority and this Tribunal are bound by the decision of the Hon'ble Supreme Court where the Hon'ble Supreme Court in "B.K. Educational Services Pvt. Ltd. Vs. Parag Gupta & Associates" (supra) clearly held that Article 137 of the Limitation Act, 1963 will apply to Sections 7 & 9 of IBC. 13. Therefore, we follow the decision of the Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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