Ozone Builders And Developers Private ... vs Omway Buildestate Private Limited

Ozone Builders and Developers Pvt. Ltd. ....Appellant Vs. Omway Buildestate Pvt. Ltd. ...Respondent For Appellant: Mr. Raveesh Thukral, Mr. Nitesh Jain, Advocates. For Respondent:

ORDER

(Through Virtual Mode)

09.02.2022: Heard Learned Counsel for the Appellant.

2. This Appeal has been filed against the judgment and order dated

30.11.2021 passed by the Adjudicating Authority (National Company Law

Tribunal), New Delhi Bench-V, by which the Application filed by the

Appellant under Section 7 of the Insolvency and Bankruptcy Code, 2016

("Code" for short) has been rejected. Appellant claims that he is Financial

Creditor and he has advanced certain amounts as a loan to the Respondent

in the year 2005-2006 but the amount was not repaid. In fact, he filed the

claim before the Arbitrator claiming that he was a partner in the business in

which award was given on 01.04.2013 rejecting his claim and observations

were made that it was a loan transaction as was contended by the Corporate

Debtor. Against the said Award, Application under Section 34 was filed

which has been dismissed on 07.12.2016 and first Appeal was also

dismissed on 08.05.2017. Learned Adjudicating Authority dismissed the 2

Application. One of the grounds for dismissal was that the Application is

clearly barred by time and cannot be entertained.

3. Learned Counsel for the Appellant challenging the finding of the

Adjudicating Authority contends that although the Claimant had received

loan in the year 2005-2006 but the question as to whether it was loan or not

was decided only on 01.04.2013. Hence, this Application is not barred by

time and he will get benefit of the said finding which became final on

08.05.2017 when the Appeal was dismissed.

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

parties and perused the record.

5. From the materials on record, it is clear that the last repayment was

made on 01.09.2006. The limitation under Article 137 of the Limitation Act

shall be three years from the date when right to sue accrue. The submission

of the Counsel for the Appellant is that in view of the Award which was given

on 01.04.2013 dismissing the claim of the Appellant and noticing the case of

the Corporate Debtor that it was a loan, hence, he got right to file proceeding

thereafter and he submits that the said finding became final only on

08.05.2017 when the first Appeal was dismissed hence, he should get benefit

of that period. The Arbitration proceedings which was undertaken under

Arbitration & Conciliation Act 1996 and the Award on 01.04.2013 shall not

give any extension of limitation to the Appellant. The Appellant is not

claiming any benefit of Section 14 of the Limitation Act. In the Award,

observation made that Corporate Debtor had given loan, shall not give any

Comp. App. (AT) (Ins.) No. 125 of 2022 3

extension of limitation. The right to sue accrued on 01.09.2006 and the

limitation being only three years, the Application under Section 7 filed in the

year 2019 was highly barred by time and no error has been committed in the

impugned order by the Adjudicating Authority in rejecting the said

Application.

The Appeal is dismissed. No costs.

[Justice Ashok Bhushan] Chairperson

[Dr. Ashok Kumar Mishra] Member (Technical)

[Dr. Alok Srivastava] Member (Technical) Anjali/n

Comp. App. (AT) (Ins.) No. 125 of 2022