TMI Blog2021 (11) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... on 23.02.2019, the Appellant issued a Demand Notice dated 25.02.2019 under Section 8 of the Code which was delivered to the Corporate Debtor on 01.03.2019 but there was no Reply. The part payment made on 17.05.2017 read together with the Ledger Account given by the Corporate Debtor on 10.05.2018 vide email and also the Ledger Account on Annexure A-6, we are of the considered view that the right to sue has accrued. Section 18 of the Limitation Act, 1963 posits that a fresh period of Limitation shall be computed from the date when the party against whom the right is claimed acknowledges its liability - the fresh period of Limitation is required to be computed from the date of acknowledgement of debt by the principal borrower and part payment made on 17.05.2017 read with the Ledger Account and the email dated 10.05.2018 evidences that the Application filed on 2019 is well within the period of Limitation. It is pertinent to mention that the Corporate Debtor has not replied to the Demand Notice issued under Section 8 of the Code. Appeal allowed - decided in favor of appellant. - COMPANY APPEAL (AT) (INSOLVENCY) No. 325 of 2021 - - - Dated:- 12-11-2021 - [Justice Anant Bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the respondent state that the statutory pecuniary jurisdiction of NCLT has been raised from Rupees One Lakh to Rupees One Crore and in this context also the application is not maintainable. However, this point is declined. The application was filed much before the pecuniary jurisdiction of the NCLT was raised to One Crore. At the given point of time when application was filed on 18.11.2019, any debt due and payable above ₹ 1,00,000/- (One Lakh) under Section 7 ,9 and 10, this adjudicating authority had jurisdiction to adjudicate. The amendment does not stopple this Adjudicating Authority to hear the application filed prior to the amendment. Hence, this application is clearly barred by limitation. Furthermore, petitioner has not filed the Statement of Account for the entire period of transactions to satisfy this Adjudicating Authority that the amount was due and payable. Accordingly, this CP (IB) No. 152/CTB/2019 is DISMISSED. 3. Submissions on behalf of the Learned Counsel appearing for the Appellant: The Learned Counsel submitted that the Appellant/ Operational Creditor supplied mono cartons and labels to the Respondent/ Corporate Debtor pursuant to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the Learned Counsel appearing for the Respondent: Learned Counsel appearing for the Respondent vehemently contended that the Adjudicating Authority has rightly dismissed the Section 9 Application on the ground of Limitation as there was never any express acknowledgement of debt of any kind to the Appellant. The Counsel denied that the amount of ₹ 2 Lakhs/- paid on 17.05.2017 was towards the alleged running account or towards the invoices submitted alongwith the Application. The Counsel denied that there was any running account between the parties; that the Appellant did not produce any documentary evidence before the Adjudicating Authority to establish that there was any running account maintained between the parties; that the Appellant filed the Bank Statements only for the period between 05.05.2017 to 29.05.2017 and 25.02.2019 to 16.10.2019 and submitted that there was no part payment made towards any running account. Email dated 10.05.2018 cannot be an acknowledgement of debt as the Corporate Debtor never admitted that it owed an outstanding amount of ₹ 33,27,708/-. The Learned Counsel placed reliance on the Judgement of the Hon ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abels by the Appellant to the Corporate Debtor . A brief perusal of Annexure-6, the Ledger Account of the Appellant for the period 01.04.2015 to 31.03.2018 shows that there were periodical transactions between the parties and an amount of ₹ 4 Lakhs/- was paid on 16.03.2017 and a further amount of ₹ 2 Lakhs/- was paid on 07.05.2017. Email communication dated 20.02.2018, 28.05.2018, 07.05.2018 and 28.11.2017 between the parties shows that repeated request were made by the Appellant to the Corporate Debtor to settle the outstanding amount. 7. At this juncture, it is relevant to reproduce the email dated 10.05.2018 sent by the Corporate Debtor to the Appellant herein, wherein the Statement of Account for the period 2017 to 2018 was appended. 8. In the aforenoted Ledger Account it is clearly stated that on 17.05.2017, an amount of ₹ 2 Lakhs/- was paid to the Appellants. Keeping in view the submissions made by the Respondent in their Reply read together with Ledger Account that mono cartons and labels were purchased from the Appellant from time to time and invoices were raised periodically , we are of the considered view that there was indeed cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of, or in a writing signed by, the person making the payment. Explanation.- For the purposes of this section, - (a) where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment; (b) debt does not include money payable under a decree or order of a court. 10. The effect of Section 18 of the Limitation Act, 1963, is that an acknowledgement of liability in respect of a right made in writing and signed by the Debtor before expiration of the prescribed period for a Suit or Application would result in a fresh period of Limitation being computed from the time when acknowledgement was so signed. It is seen from the aforenoted Ledger Account reproduced in para 7 read with Annexure-6, that an amount of ₹ 32,27,708/- was due and liable to be paid by the Respondent to the Appellant. It is relevant to note that the part payment was made on 23.05.2017, the email sent by the Corporate Debtor is dated 10.05.2018 and the Application was filed in November, 2019 well within the Limitation period. 11. It is significant to mention at this stage that on 23.02.2019, the Appellant issued a De ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
