TMI Blog2021 (3) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... DGMENT This petition under article 227 of the Constitution of India is directed, inter alia, against order dated August 19, 2019 passed by the National Company Law Tribunal, Kolkata Bench in C. P. (IB) No. 1111/KB/2018 (State Bank of India v. Hanumanta Engineering P. Ltd. [2021] 13 Comp Cas-OL 247 (NCLT)). 2. Ms. Banerjee, the learned advocate had appeared on behalf of the petitioner to move it on August 6, 2020. She had demonstrated proof of service, submitted that an earlier similar petition was pending, which would be withdrawn at first opportunity and prayed for interim order. Her submission regarding withdrawal was not recorded but there is recollection of such submission having had been made. The court had directed service of copy of order dated October 6, 2020 since State Bank went unrepresented. Today Mr. Rai, the learned advocate appears on behalf of the bank. 3. Ms. Banerjee submits, her client's challenge to the two impugned orders is that the Tribunal did not have jurisdiction to make it. By the impugned order dated August 19, 2019 the Tribunal admitted application of the bank made under section 7 of the Insolvency and Bankruptcy Code, 2016 and made conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporate debtor when a debt has become due and payable ; and (g) that if default had occurred over three years prior to the date of filing of the application, the application would be time-barred save and except in those cases where, on facts, the delay in filing may be condoned ; and (h) an application under section 7 of the Code is not for enforcement of mortgage liability and article 62 of the Limitation Act does not apply to this application. Whether section 18 of the Limitation Act could be applied to the present case ? 5. She also relies on Gaurav Hargovindbhai Dave v. Asset Reconstruction Co. (India) Ltd. reported in [2019] 8 Comp Cas-OL 250 (SC) ; [2019] 10 SCC 572. Her submission, by this judgment the Supreme Court said that time begins to run on and from date of declaration of the borrower's account as NPA. She submits, where article 137 requires the application to be brought within three years from date when the right to apply accrues, Supreme Court having said that time begins to run from date of declaration of NPA and corporate debtor's admitted date of declaration as NPA being August 6, 2012 on those facts the Tribunal lacked jurisdiction to direct adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory alternative remedy should be allowed to be bypassed or not . . . Therefore in so far as the question of exercise of the power conferred by article 226, despite the availability of a statutory alternative remedy, is concerned, Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 WLR 163 (HL) cannot be relied upon. The distinction between the lack of jurisdiction and the wrongful exercise of the available jurisdiction, should be certainly be taken into account by High Courts, when article 226 is sought to be invoked bypassing a statutory alternative remedy provided by a special statute. 9. He then relies on Deep Industries Ltd. v. Oil and Natural Gas Corporation Ltd. available at [2019] SCC Online SC 1602, where in paragraph 25, observations were made regarding the question relating to jurisdiction of High Courts under article 227 of the Constitution of India in relation to matters decided under the Arbitration and Conciliation Act, 1996. Mr. Rai submits, he relies on the observations, as applicable, since both, the Act of 1996 and Code of 2016 are complete codes in themselves, providing for original and appellate actions. The observations made in the judgment, as re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Limitation Act mandates dismissal of, inter alia, an application, which is barred by limitation. 12. On perusal of the impugned order, as pointed out by Mr. Rai, it appears from paragraphs 19 and 20 that the bank had asserted, the bar of limitation did not apply as the corporate debtor had made acknowledgments in its balance-sheets, acknowledgments as in section 18 of the Limitation Act, for the period of limitation being extended. 13. Declaration of law or the principles of law applicable regarding provisions in the 2016 Code were declared by the Supreme Court in Babulal Vardharji Gurjar v. Veer Gurjar Aluminium Industries P. Ltd. [2020] 222 Comp Cas 115 (SC), the judgment bearing date August 14, 2020. The judgment, therefore, was not before the Tribunal as on date of impugned orders. 14. The court is convinced that the mandate of the Limitation Act is for dismissal of, inter alia, an application such as the bank's, on having been brought more than three years after right to sue accrued. The Tribunal, on the facts, lacked jurisdiction to admit it. Therefore, interference is warranted. Here, such interference cannot be prevented by contention of Mr. Rai on reliance o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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