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TMI Blog2022 (9) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and the Respondent, the Respondent let out on hire to the Appellant, 150 MT crane for erection of equipment at the site of Indian Oil Corporation Ltd. (IOCL) at Paradip in Odisha. The Respondent/Operational Creditor raised invoices on the Appellant between 3rd January 2012 and 4th March 2013 for a sum of Rs.38,84,709/-. 3. On or about 6th May 2013, the Respondent issued notice to the Appellant for payment of outstanding hire charges. By letter dated 17th May 2013, the Appellant replied to the said notice. Further correspondence ensued. 4. Ultimately, on 14th October 2013, the Respondent issued a statutory notice to the Appellant under Sections 433(e), 434 and 439 of the Companies Act, 1956 for Winding Up of the Appellant-Company. The Appellant duly replied to the notice on 7th November 2013, acknowledging its liability to the Respondent. 5. On 9th November 2013, the Respondent called upon the Appellant to clear its dues. On 24th May 2014, the Respondent issued a statutory notice under Sections 433(e), 434 and 439 of the Companies Act, 1956 calling upon the Appellant to pay Rs.38,84,709/- towards crane hire charges. 6. On or about 22nd December 2015, the Respondent filed a Wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. "The right to sue", therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application." 12. In Radha Export (India) Private Ltd. v. K.P. Jayaram and Anr. (2020) 10 SCC 538, this Court referred to B.K. Educational Services Pvt. Ltd. (supra) and held the application under Section 7 of the IBC to be barred by limitation. 13. In Babulal Vardharji Gurjar v. Veer Gurjar Aluminium Industries Private Ltd. and Anr. (2020) 15 SCC 1, this Court held that limitation of three years as provided by Article 137 of the Limitation Act, which commenced from the date of the default, was extendable under Section 5 of the Limitation Act, 1963. 14. It is well settled by a plethora of judgments of this Court as also different High Courts and, in particular, the judgment of this Court in B.K. Educational Services Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24th May 2014 issued by the Respondent demanding payment, it was contended that the Appellant had agreed to pay its outstanding dues in five equated monthly installments of Rs.8,48,053/-. The Appellant had, however, defaulted after payment of one installment for the month of June, 2013. A copy of the petition filed by the Respondent in the High Court of Judicature at Madras is enclosed to the paper book. The Respondent asserted - "The Petitioner states that without any valid reason the Respondent delayed the payment for the Services done by the petitioner. Even after repeated and constant follow-up the Responder did not settle the dues payable to the Petitioner and therefore, the Petitioner issued a notice dated 06.05.2013 and demanded the Respondent to make the payment. The Respondent sent a reply dated 17.05.2013 and in the said reply the Respondent admitted the outstanding dues and agreed to settle the outstanding dues in six months and requested the Petitioner to give discount. The Petitioner issued a rejoinder dated 21.05.2013 providing 10% discount and to settle the remaining amount in 5 equaled monthly instalment, commencing from 1st June, 2013. However, it is made clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/- has become due and payable on 28.02.2013. There is a single confirmation of the claim by the Corporate Debtor on 07.11.2013 as reflects from the document placed at page 60 of the typed set filed with the Application. Thereafter, there is nothing on record to suggest that at any point of time the Corporate Debtor confirmed/acknowledged the debt. In the circumstances, the claim has become time barred and in view the judgment of the Hon'ble Supreme Court passed in B.K. Educational Services Pvt. Ltd. -vs- Parag Gupta and Associates (2018 SCC Online SC 1921), the Petition stands dismissed." 23. It is now well settled that the provisions of the Limitation Act are applicable to proceedings under the IBC as far as may be. Section 14(2) of the Limitation Act which provides for exclusion of time in computing the period of limitation in certain circumstances, provides as follows: "14. Exclusion of time of proceeding bona fide in court without jurisdiction.- (1) ... (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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