International Combustion (India) Ltd vs The Indure Pvt. Ltd

International Combustion (India) Ltd. ...Appellant

Versus

The Indure Pvt. Ltd. ...Respondent

Present: For Appellant: Ms. Kashvi Dutta, Ms. Ruena Dutta and Mr. Priyal Jain, Advocates. For Respondent:

ORDER

23.11.2022: Heard learned counsel for the Appellant. This Appeal has

been filed against the order dated 18.08.2022 by which order the application

filed by the Appellant under Section 9 has been dismissed as barred by time.

The Appellant has filed the application under Section 9 praying for operational

dues of Rs.40,34,922/-. The application was heard by the Adjudicating

Authority and order was passed where Adjudicating Authority has noticed that

the purchase orders pertained to year 2012-13 and for the first time on

30.06.2018, Operational Creditor has sent a letter to the Corporate Debtor

demanding payment of outstanding amount of Rs.40,34,922/-. The

Adjudicating Authority has dismissed the application as barred by time.

Following observations have been made in Para 5:

"5. Further, there is no acknowledgment of debt/liability from 2012-13 to 2018 by the Corporate Debtor. It is judicially settled that proceedings under

Cont'd.../ -2-

the IB Code are subject to law of Limitation and that in the case of applications under Section 7 or 9 of the Code, the period of Limitation will be three years from the date of cause of action in terms of Article 137 of the Limitation Act, unless extended in terms of provisions of Section 18 or 19 of the Limitation Act. It is admitted by the Learned Counsel for the Appellant that neither any acknowledgement of debt nor any part payment was made by the Respondents during the period 2012-13 to 2018. The present petition under Section 9 of IBC has been filed on 28.01.2020. Therefore, it is amply clear from the above facts that the present petition under Section 9 is grossly delayed and time barred.

Therefore, the present petition i.e., IB- 402/ND/2020 is dismissed as barred by limitation."

2. When the matter came up on 18.10.2022, we granted time to the

Appellant to file additional affidavit to show acknowledgement of the debt by

the Corporate Debtor. An affidavit has been filed by the Appellant where

certain emails sent by the Appellant has been brought on record demanding

payment form the Corporate Debtor. No acknowledgement within the meaning

of Section 18 of the Limitation Act has been brought on record, hence, the

Appellant cannot claim any benefit. For default occurred in the year 2012-13,

the application filed by the Appellant on 28.01.2020 was clearly barred by

time. We do not find any error in the order of the Adjudicating Authority

Company Appeal (AT) (Insolvency) No. 1240 of 2022 -3-

dismissing the application under Section 9 as barred by time. It goes without

saying that it is always open for the Appellant to take such remedy available

as permissible in accordance with law. With these observations, the Appeal is

dismissed.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

[Barun Mitra] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No. 1240 of 2022