M/S Laxmi Cores Manufacturing Pvt. Ltd vs Present
- CitationCompany Appeal (AT) (Insolvency) No. 1393 of 2023
Ratio decidendi
The rule this decision rests on
The period from 25.03.2020 to 28.02.2022, during which the Supreme Court's suo motu orders in Writ Petition (Civil) No. 3 of 2020 extended limitation, is to be excluded in computing the three-year limitation period for an application under Section 10 of the Insolvency and Bankruptcy Code, 2016, so that an application filed within three years after excluding that period is not barred by time. Where the Adjudicating Authority has rejected an application as time-barred without considering the effect of that extension, the matter is remitted for fresh consideration, and the Appellate Tribunal does not decide the merits of the application.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE MATTER OF: Laxmi Cores Manufacturing Pvt. Ltd. ...Appellant
Versus
Present: For Appellant : Mr. Ashish Choudhury, Mr. Santosh Kumar Ray, Mr. Abhishek Arora and Mr. Akash Tandon, Advocates
ORDER
(Hybrid Mode)
27.03.2024: Learned Counsel for the Appellant submits that Section 10
Application filed by the Appellant was rejected by Adjudicating Authority on the
ground that it is barred by time. Learned Counsel submits that Section 10
Application was filed on 14.01.2023. It is submitted that date of default
accepted by Adjudicating Authority was 09.10.2019, on the ground that Bank
of Baroda invoked the Guarantee by letter dated 09.10.2019.
2. Learned Counsel for the Appellant submits that the Adjudicating
authority failed to consider the facts and circumstances order of Hon'ble
Supreme Court in suo moto Writ Petition no. 3/20 where the period from
25.03.2020 to 28.02.2022 has to be excluded. He submitted that his
application excluding the above period, filed by the Appellant was not beyond 3
years. In the facts and circumstances and under the order of the Hon'ble Supreme Court, period from 25.03.2020 to 28.02.2022 has to be excluded. By
excluding the aforesaid period, the application cannot be said to be barred by
time.
3. In pursuance of the order of this Tribunal dated 01.11.2023, notices
were issued for publication by the Appellant in two local new papers. Affidavit
of service has been filed by the Appellant on 07.12.2023 showing the
publication. No objection has not been filed even after publication.
4. In the facts of the case, we revive Section 10 application to be heard by
the Adjudicating Authority afresh in accordance with law. We make it clear that
we have not considered the matter on merits and it is for the Adjudicating
Authority to consider the matter on merit and decide.
The appeal is disposed of.
[Justice Ashok Bhushan] Chairperson
(Mr. Arun Baroka) Member(Technical) akc/Nn
Company Appeal (AT)(Insolvency) No. 1393 of 2023 Page 2 of 2
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