TMI Blog2021 (5) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... l Court by way of a suit for recovery of money, as the claim amount admittedly falls beyond the prescribed period of limitation and thereby by filing the present Application under Section 60(5) of IBC, 2016, cannot seek to enforce a claim, which is time barred as per the provisions of the Limitation Act, 1963 on the date of initiation of the CIRP itself. Hence, also on the said count, the Application as filed by the Applicant is liable to be dismissed. It is also relevant to refer to the decision of the Hon'ble Supreme Court of India, in the matter of B.K. EDUCATIONAL SERVICES PRIVATE LIMITED VERSUS PARAG GUPTA AND ASSOCIATES [ 2018 (10) TMI 777 - SUPREME COURT] wherein it has held that Limitation Act is applicable since the inception of the Code while posing itself with a query as to whether the Limitation Act, 1963 will apply to Applications that are made under Section 7 and or Section 9 of the Code on and from its commencement on 01.12.2016 to 06.06.2018 (date of amendment of insertion of Section 238-A coming into effect). It was clearly held that the Code could not have been to give a new lease of life to debts which are time barred and have thereby gone to give a findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest @ 18% per annum which comes to the tune of ₹ 56,15,000/-. 4. It was also submitted by the Learned Counsel for the Applicant that the Corporate Debtor, by way of e-mail dated 21.09.2016 has agreed that a sum of ₹ 97.21 Lakh towards the rent is due and payable and undertook to pay the same at the earliest. Learned Counsel for Applicant submitted that on repeated follow up made by the Applicant to the Corporate Debtor, orally and in writing, the Corporate Debtor has made commitments to pay the outstanding dues, however, it has failed to adhere to the same. 5. In the meanwhile, this Tribunal had initiated the Corporate Insolvency Resolution Process (CIRP) as against the Corporate Debtor and appointed the Respondent herein as the IRP vide its order dated 05.05.2020. Subsequently, thereof the Applicant has lodged his claim before the IRP on 19.08.2020 and on 19.08.2020 itself, the RP has rejected the claim of the Applicant and communicated the same to the Applicant by way of e-mail. Aggrieved against the said rejection of the claim by the Respondent/RP, the Applicant has filed the present Application seeking to set aside the said rejection. 6. The Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce not admissible. 3) No documentary evidence demanding arrears of rent and interest, in respect of satisfaction of Claim was enclosed/attached. 4) The reported arrears of rent is for a period of 62 months from December 2013 to January 2019 with interest and the total claim ₹ 15416682/- 5) Bank statement of Creditor showing non satisfaction of Claim was not attached. 6) No order of the Court or the Tribunal that has adjudicated upon the non satisfaction of the Claim as required under Regulation 9A(2)(iii) is not attached. Hence, for the above reasons the Claim is not admitted, so stands rejected which please note. 10. It is seen that the claim submitted by the Applicant relates to the dues which are payable for the period from November 2013. Perusal of the claim Form i.e., Form F filed before the IRP by the Applicant manifests the fact that the Applicant has placed on record the following four documents in order to substantiate his claim as follows:- (i). Lease Deed dated 03.01.2011; (ii). Summary sheet of calculation of claim; and (iii). E-mail acknowledgement of the Corporate Debtor 11. Further the Applicant has not placed on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice by long enjoyment or what may have been lost by a party's own inaction, negligence or latches . Though the Code is not a debt recovery law, the trigger being 'default in payment of debt' renders the exclusion of the law of limitation counterintuitive. Second, it re-opens the right of claimants (pursuant to issuance of a public notice) to file time-barred claims with the IRP/RP, which may potentially be a part of the resolution plan. Such a resolution plan restructuring time-barred debts and claims may not be in compliance with the existing laws for the time being in force as per Section 30(4) of the Code. 28.3 Given that the intent was not to package the Code as a fresh opportunity for creditors and claimants who did not exercise their remedy under existing laws within the prescribed limitation period, the Committee thought it fit to insert a specific section applying the Limitation Act to the Code. The relevant entry under the Limitation Act may be on a case to case basis. It was further noted that the Limitation Act may not apply to applications of corporate applicants, as these are initiated by the applicant for its own debts for the purpose of CIRP and ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
