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Hertz Technologies Pvt. Ltd. & Ors vs Netizen Engineering Pvt Ltd

National Company Law Appellate Tribunal18 October 2022Ashok Bhushan

Ratio decidendi

The rule this decision rests on

An email which merely seeks forwarding of misplaced bills and a reply which asks the creditor to reconcile and close pending invoices, neither of which expressly admits a liability or a subsisting debt, does not amount to an acknowledgement of debt for the purposes of Section 18 of the Limitation Act, 1963, and so cannot extend the period of limitation for an application under Section 9 of the Insolvency and Bankruptcy Code, 2016. Where an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 is filed after the three-year period prescribed by Article 137 of the Limitation Act, 1963 has expired, and no acknowledgement of debt capable of extending limitation under Section 18 is shown, the application is barred by time and is liable to be dismissed.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNALPRINCIPAL BENCH, NEW DELHICompany Appeal (AT) (Insolvency) No. 984 of 2022IN THE MATTER OF:

Hertz Technologies Pvt. Ltd. & Ors. ...Appellants

Versus

Netizen Engineering Pvt. Ltd., ...Respondents Erstwhile Reliance Infocom Engineering Ltd.

Present:

For Appellant: Mr. D.V. Raghu V., Advocate For Respondent: Kumar Anurag Singh, Zain A Khan, Shwetank Singh, Advocates

ORDER

18.10.2022: Heard Learned Counsel for the Appellant.

2. This Appeal has been filed against the Order dated 18th January, 2022.

By which Order, the Adjudicating Authority has dismissed Section 9

Application filed by the Appellant as barred by time.

3. The Appellant has filed the Section 9 Application on 26th April, 2019.

Invoices were issued by the Appellant in the year 2011-12 and last payment

as per the case of the Appellant was made on 11th March, 2016.

4. Learned Counsel for the Appellant challenging the Order dated

18.01.2022 submits that there was acknowledgement by the Respondent

hence he shall have the benefit of extension of limitation under Section 18 of

the Limitation Act, 1963. He has relied on Email dated 29th April, 2017 which

was in reply to the Email sent by the Appellant. Both the Emails are at the

page 472 of the Appeal Paper Book. In the Email sent by the Appellant,

following is stated:

-2-

"Dear Gurjit Sir, I had visited april 2016 for submitting out misplaced bills from Merrut MCN. Till date our files are lying in MCN. I had also told you on phone and on mail also regarding same. So please atleast after one year forward our files to Lucknow so it will process for payments.

Regards Kiran Chavan For Hertz Technologies Pvt. Ltd."

5. The Reply has been sent by the Respondent which is to the following

effect:

"....

I have told you to please share the complete list of sites where you have done the installation of IBS works till date. (Submitted 31 sites only) Same complete list I have demanded from Arun Sharma also but sorry to say that I have not received the complete list of site where you both have done the work in coordination with each other. All works has been done by you under Mr. Arun Sharma & business team. You are requested to please coordinate with him & close you pending invoices and reconciliation also.

Regards Gurjit Singh DGM-Project"

6. We have looked into the Emails which have been relied on by the

Appellant. The email dated 29th April, 2017 can not be read to be an

acknowledgement of debt so as to give benefit of extension of limitation under

Section 18 of the Limitation Act to the Appellant.

Company Appeal (AT) (Insolvency) No. 984/2022 -3-

7. The Adjudicating Authority has rightly taken the view that Application

having been filed beyond three years as provided under Article 137, dismissed

as barred by time.

8. We see no reason to entertain this Appeal. The Appeal is dismissed as

barred by time.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

[Mr. Barun Mitra] Member (Technical)

Basant/nn

Company Appeal (AT) (Insolvency) No. 984/2022

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