Dormakaba India Pvt Ltd vs Sheth Developers Pvt Ltd

Comp. App. (AT) (Ins) No. 1438 of 2022 & I.A. No. 4529 of 2022

IN THE MATTER OF: Dormakaba India Pvt. Ltd. ...Appellant

Versus

Sheth Developers Pvt. Ltd. ...Respondent Present: For Appellant : Mr. Amit Shrivastava, Adv. For Respondent : Mr. Vikram Deshmukh, Mr. Dhawal Mohan, Mr. Vatsal Shah, Adv.

ORDER

Per: Justice Rakesh Kumar Jain: (Oral)

17.10.2023: This appeal is directed against the order dated 13.09.2022

passed by the Adjudicating Authority (National Company Law Tribunal,

Mumbai Bench at Mumbai) by which an application bearing CP No.

113/IBC/MB/2020 filed under Section 9 of the Insolvency and Bankruptcy

Code, 2016 (in short 'Code') has been dismissed only on the ground that the

application is barred by limitation.

2. Shorn of unnecessary details, Counsel for the Appellant has argued

that the Respondent has acknowledged the debt by way of five emails i.e.

23.04.2013, 11.12.2013, 06.08.2014, 13.04.2017 and 01.08.2017 but the

Adjudicating Authority has erred in not considering the emails dated

11.12.2013 and 06.08.2015 at all much less about its impact as to whether

by way of said emails the Respondent has acknowledged the debt and has

thus extended the period of limitation.

3. Counsel for the Appellant has submitted that the period of limitation is

three years in terms of Article 137 of the Limitation Act, 1963 (in short 'the

Act') but as per Section 18 of the Act the period of limitation gets extended with every acknowledgement. In this regard, he has submitted that if the

Limitation is to be counted from 23.04.2013 (first email) it will come to an end

on 22.04.2016 but there is another email dated 11.12.2013 and with that the

limitation would go up to 10.12.2016 and with the acknowledgment by way

of email dated 06.08.2015 the limitation would go up to 05.08.2018 and if the

email dated 13.04.2017 is considered then the limitation would go up to

12.04.2020 whereas the application under Section 9 of the Code was filed on

07.01.2020 and therefore, according to the Appellant, the application was

within the period of limitation, had the Adjudicating Authority taken into

consideration the emails dated 11.12.2013 and 06.08.2015.

4. On the other hand, Counsel for the Respondent has argued that the

aforesaid emails have rightly not been taken into consideration because no

acknowledgment is shown in the said emails and also these emails have not

been referred to in the email dated 16.02.2017.

5. We have heard Counsel for the parties and after examining the record

are of the considered opinion that the Adjudicating Authority has committed

a patent error in not adverting to the two emails dated 11.12.2013 and

06.08.2015 in any manner much less in order to find out as to whether these

emails have any relevance for the purpose of deciding as to whether the

application is within the period of limitation in terms of Section 18 of the Act.

6. Consequently, the present appeal is hereby allowed and the impugned

order is set aside. The matter is remanded back to the Adjudicating Authority

to decide again after taking into consideration all the aforesaid emails

particularly dated 11.12.2013 and 06.08.2015. It is made clear that we have

not made any observation or recorded findings on the merit of the case and

everything is kept open for the Adjudicating Authority to consider and decide. The parties are directed to appear before the Adjudicating Authority on 20th

November, 2023.

The registry is directed to send the copy of this order to the concerned

Adjudicating Authority.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

Sheetal/Ravi