Rcc Infraventures Limited vs Steel India

RCC Infra Ventures Ltd. ...Appellant

Versus

Steel India ...Respondent

Present: For Appellant: Ms. Amrita Panda, Mr. Karan Kaushal and Mr. Udbhav Gady, Advocates. For Respondent:

ORDER

(Hybrid Mode)

26.02.2024: Heard learned counsel for the Appellant. This Appeal has

been filed against order dated 11.01.2024 by which order I.A. No.71 of 2024

filed by the Appellant under Rule 11 seeking dismissal of the main Company

Petition has been rejected and the Adjudicating Authority granted two weeks'

time to the Corporate Debtor to file Reply.

2. Learned counsel for the Appellant challenging the order contends that

the Appellant has filed I.A. No.71 of 2024 raising the issue that the Section 9

application being barred by time should be rejected at the outset. It is

submitted that the Adjudicating Authority does not have jurisdiction to

proceed with the petition if the petition is barred by time. Learned counsel

for the Appellant has placed reliance on judgments of the Hon'ble Supreme

Court in "AIR 1964 SC 1336, Manindra Land and Building Corporation Ltd. vs. -2-

Bhutnath Banerjee and Others, Para 9", the Judgment of Hon'ble Supreme

Court in "B. K. Educational Services Pvt. Ltd. vs. Parag Gupta and Associates,

(2019) 11 SCC 633, Paras 12, 43 & 44" as well as judgment in "AIR1962 SC

1621, Ujjam Bai vs. State of U.P., Para 19".

3. Learned counsel for the Appellant submits that the Section 3 of the

Limitation Act casts duty on the Court to reject an application which is barred

by time even if no defence has been raised by the Corporate Debtor.

4. The order passed by the Adjudicating Authority is in an application filed

under Section 9 of the I&B Code. I&B Code provides for procedure for

consideration of application. NCLT Rules, 2016 provides for issuance of

notice to the Corporate Debtor who is required to file a reply for opposing the

application. There cannot be any dispute to the proposition that if an

application is barred by time, the application deserved to be rejected.

However, the issue whether the application is barred by time or not is a mixed

question of law and facts. Having apprised with the relevant facts, the Court

will be able to decide the question of limitation. The Appellant who is

Corporate Debtor had been given time to file reply. The Adjudicating

Authority has taken a view that after receiving the reply of the Appellant, the

Adjudicating Authority shall proceed with the main petition. The IBC being

proceedings which has timelines, if the Adjudicating Authority proceed to

decide the issue raised by the Appellant along with main petition, no fault

can be found with the decision of the Adjudicating Authority at this stage. It

is open for the Appellant, to file its reply affidavit before the Adjudicating

Company Appeal (AT) (Insolvency) No.425 of 2024 -3-

Authority raising all issues including the issue of limitation. We have no

doubt that the Adjudicating Authority shall consider the issue of limitation

while deciding the Section 9 application, in accordance with law. With these

observations, we dismiss the appeal.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No.425 of 2024