Mohan Lal Goel vs National Skill Development ...

Sh. Mohan Lal Goel ....Appellant Vs. National Skill Development Corporation ...Respondent For Appellant: Mr. Suraj Kr. Vishwakarma, Mr. Neeraj Kr. Gupta, Advocates.

For Respondent: Ms. Gunjan Sinha Jain, Ms. Aparna Gupta, Advocates.

ORDER

(Through Virtual Mode)

23.03.2022: Heard Learned Counsel for the Appellant and Learned

Counsel for the Respondent.

2. This Appeal has been filed against the order dated 01.12.2021 passed

by the Adjudicating Authority (National Company Law Tribunal), New Delhi

Bench, by which the Application filed by the Appellant as Operational Creditor

under Section 9 of the Insolvency and Bankruptcy Code, 2016 ("I&B Code" for

short) has been rejected on the ground that Application is barred by time. The

Appellant, an Operational Creditor, claim to have joined the Corporate Debtor

on 20.11.2015 and remained an employee with them from 20.11.2015 till

28.02.2017. Operational Creditor has given a notice under Section 8

demanding salary for unpaid notice period and other emoluments and

consequently he filed an Application under Section 9 which came to be rejected 2

by the Adjudicating Authority. The Adjudicating Authority in paras 9 and 10

has held that the Application is barred by limitation. The findings returned by

the Adjudicating Authority is that the date of default mentioned in the

Application is 30.12.2016 whereas Application was filed on 13.03.2020 and in

view of the Article 137, the Application is barred by time. Paras 9 and 10 of

the impugned order is to the following effect:-

"9. In the light of the aforesaid submissions raised on behalf of the applicant, we have gone through the averments made in the application as well as the documents enclosed with the application and on careful consideration of the same, we find that on page 11 part 4, the applicant referred to the email dated 27.04.2017, on the basis of which, the applicant claimed the amount which is in default, and we find that the date of default mentioned in the application is 30.12.2016 whereas the present application is filed on 13.03.2020. In view of Article 137, the applicant is required to file the application within 3 years when the right to apply accrues.

10. At this juncture, we would also like to mention the date of default referred at page 11 and accordingly, the date of default, is 30.12.2016. on the basis of that, it can be said that applicant admits that the date of default is 30.12.2016 and since as per the termination letter dated 30.11.2016, the last working date of the applicant was 30.12.2016, therefore, the date of default is 30.12.2016. In this case the date from which debt fell due was 30.12.2016, therefore, the right to apply accrues on 30.12.2016 and the present application was filed on 13.03.2020 which is beyond 3 years of date of default. Hence, the application is barred by limitation."

Comp. App. (AT) (Insolvency) No. 287 of 2022 3

3. Learned Counsel for the Appellant challenging the order contends that

the Adjudicating Authority committed error in not considering the

acknowledgment which was received by the Appellant giving the benefit of

Section 18 of the Limitation Act. He submits that the period of limitation got

extended by virtue of e-mails which were sent on 26.03.2017 and 27.04.2017.

4. We have considered the submissions of the Learned Counsel for the

Appellant and perused the record.

5. The copy of the Application filed under Section 9 by the Appellant has

been brought on the record where under Part-IV, it has been clearly mentioned

that debt fell due on 30.12.2016. Application was filed beyond three years from

the date when debt fell due. The submission which has been pressed by the

Appellant is regarding extension of limitation by virtue of the e-mails dated

26.03.2017 and 27.04.2017. E-mail dated 26.03.2017 which was addressed

to the Appellant is to the following effect:-

"Dear Mohan

I have asked Mahesh to look into your case on priority and I am hopeful you will have a resolution soon. By the way, there was a query about you (probably a prospective employee?) and I strongly recommended."

6. The above e-mail does not contain any acknowledgment which can be

read as acknowledgment of accepting the debt within the meaning of Section

18 of the Limitation Act.

Comp. App. (AT) (Insolvency) No. 287 of 2022 4

7. Learned Counsel for the Appellant submitted that since e-mail was

mentioned that they shall look into the case which clearly means that debt

was acknowledged. We are not persuaded to accept the aforesaid submission.

8. The mere fact that the e-mail was received that the matter shall be

looked into. The use of exact words "I have asked Mahesh to look into your case

on priority and I am hopeful you will have a resolution soon". The above

expression cannot be read any acknowledgment within the meaning of Section

18. Subsequent mail which is of 27.04.2017 which is written by one of the

employees of the Corporate Debtor at Page 45 of the paper book cannot be

treated to be acknowledgment by the Corporate Debtor within the meaning of

Section 18 by the Corporate Debtor.

9. Learned Counsel for the Appellant has also referred to explanation to

Section 18 of the Limitation Act. To support his submission, explanation (a) to

Section 18 is to the following effect:-

"18. Effect of acknowledgment in writing.--

(1) ****** (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received. Explanation.--For the purposes of this section,--

(a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment

Comp. App. (AT) (Insolvency) No. 287 of 2022 5

has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or right"

10. Explanation (a) to Section 18 has no applicability in the facts of the

present case nor any benefit can be claimed by the Appellant on the basis of

explanation (a). In any view of the matter, we are of the view that Application

filed under Section 9 by the Appellant could not have been entertained and

has been rightly rejected by the Adjudicating Authority. We do not find any

error in the impugned order. The Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

[Shreesha Merla] Member (Technical)

Anjali/nn

Comp. App. (AT) (Insolvency) No. 287 of 2022