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M. Chakravarthi vs Sawhney Trading Company Private ...

National Company Law Appellate Tribunal3 May 2018

Ratio decidendi

The rule this decision rests on

The Limitation Act, 1963 does not apply to proceedings under the Insolvency and Bankruptcy Code, 2016, so a Section 9 application is not defeated because the underlying claim falls outside the limitation period. An objection that the operational creditor failed to enclose the complete records with its Section 9 application cannot succeed in appeal absent a specific pleading that the application was defective; a defect in the application is a matter the corporate debtor must raise before the Adjudicating Authority so that the creditor may be allowed to cure it.

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

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHICompany Appeal (AT) (Insolvency) No. 178 of 2018IN THE MATTER OF:

M. Chakravarthi ...Appellant

Vs.

Sawhney Trading Company Private Limited & Anr. ...Respondents

Present: For Appellant: - Mr. M.A. Venkata Subramanian and Mr. K. Moorthy, Advocates.

ORDER

03.05.2018- This appeal has been preferred by the Appellant against

the order dated 9th April, 2018, passed by the Adjudicating Authority

(National Company Law Tribunal), Chennai Bench, whereby and

whereunder the application under Section 9 of the Insolvency and

Bankruptcy Code, 2016 (hereinafter referred to as "I&B Code") preferred

by the Respondents- M/s. Sawhney Trading Company Private Limited

for 'Corporate Insolvency Resolution Process' against M/s. K.A.

Earthmovers Private Limited has been admitted, order of 'Moratorium'

has been passed and 'Interim Resolution Professional' has been

appointed.

2. Learned counsel appearing on behalf of the Appellant submitted

that the claim related to the year 2010 and thereby it was barred by

limitation, but such submission cannot be accepted in view of the

decision of this Appellate Tribunal in "M/s. Speculum Plast Pvt. Ltd. -2-

V/s. PTC Techno Pvt. Ltd. ─Company Appeal (AT) (Insolvency) No.

47 of 2017", wherein this Appellate Tribunal held that the 'Limitation

Act' will not be applicable to the proceeding under 'I&B Code'.

3. Then it is contended that the total records were not enclosed by

the 'Operational Creditor' as is required under the law, but in absence

of any specific pleading, such arguments cannot be accepted. If there

was any defect in the application, it was open to the Appellant to point

out the same to the Adjudicating Authority to enable the 'Operational

Creditor' to cure the defects. However, as there is nothing on the record

to suggest that the application under Section 9 of the 'I&B Code'

preferred by the Respondent-'Operational Creditor' was defective, we

reject the submission.

4. We find no merit in this appeal. It is accordingly dismissed. No

cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member(Judicial) Ar/uk

Company Appeal (AT) (Insolvency) No. 178 of 2018

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