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Skyway Rmc Plants Pvt. Ltd vs Tnans Tech Turnkey Pvt. Ltd

National Company Law Appellate Tribunal25 April 2018

Ratio decidendi

The rule this decision rests on

The Limitation Act, 1963 does not govern the initiation of the Corporate Insolvency Resolution Process; rather, the doctrine of limitation and prescription, and the principle of laches, is to be applied in determining whether an application under Section 7 or Section 9 may be entertained after a long delay. Where more than three years have elapsed from the date of the cause of action, the applicant may be called upon to explain the delay, and where there is a continuing cause of action no application may be rejected on the ground of delay. A stale claim without explanation of the delay should normally not be entertained to trigger the process under Section 7 or Section 9, whereas the principle does not apply to an application by a corporate applicant under Section 10.

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

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNALNEW DELHICompany Appeal (AT) (Insolvency) No. 81 of 2018IN THE MATTER OF:

Skyway RMC Plants Pvt. Ltd. ...Appellant

Vs

Trans Tech Turnkey Pvt. Ltd. ....Respondent

Present: For Appellant: Mr. Rahul Chitnis and Mr. Samrat Krishnarao Shinde, Advocates.

ORDER

25.04.2018: The appellant ('Operational Creditor') filed an application

under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter

referred to as the, "I&B Code') after invoking the provisions of Section 8(1) OF

the I & B Code. The Adjudicating Authority (National Company Law Tribunal),

Mumbai Bench by impugned order dated 29th January, 2018 rejected the

application on the ground that the petition filed on 13th November, 2017 is hit

by the law of limitation, as the matter pertains to claim for the year 2014.

2. Notices were issued on respondent. One Mr. Vatsalya Vigya along with

Mr. Sandeep S. Deshmukh, advocates appeared on behalf of the respondent

and prayed for time to file reply along with Vakalatnama. But in spite of the

same, no reply has been filed nor anybody appears on behalf of the

respondent. The averments made in the appeal has not been disputed. 2

3. Similar issue fell for consideration before this Appellate Tribunal in

"M/s. Speculum Plast Pvt. Ltd. vs. PTC Techno Pvt. Ltd. - 2017 SCC ONLINE

NCLAT 319" wherein this Appellate Tribunal observed and held as follows:

"71. From Article 137 of the Limitation Act, 1963, it is clear

that the period of three years' is to be counted from the

date right to apply accrues to a 'Financial Creditor' or

'Operational Creditor' or 'Corporate Debtor'.

xxx xxx xxx

80. In view of the settled principle, while we hold that the

Limitation Act, 1963 is not applicable for initiation of

'Corporate Insolvency Resolution Process', we further

hold that the Doctrine of Limitation and Prescription is

necessary to be looked into for determining the question

whether the application under Section 7 or Section 9 can

be entertained after long delay, amounting to laches and

thereby the person forfeited his claim.

81. If there is a delay of more than three years from the date

of cause of action and no laches on the part of the

Applicant, the Applicant can explain the delay. Where

there is a continuing cause of action, the question of

rejecting any application on the ground of delay does not

arise.

Company Appeal (AT) (Insolvency) No. 81 of 2018 3

82. Therefore, if it comes to the notice of the Adjudicating

Authority that the application for initiation of 'Corporate

Insolvency Resolution Process' under section 7 or Section

9 has been filed after long delay, the Adjudicating

Authority may give opportunity to the Applicant to explain

the delay within a reasonable period to find out whether

there are any laches on the part of the Applicant.

83. The stale claim of dues without explaining delay,

normally should not be entertained for triggering

'Corporate Insolvency Resolution Process' under Section

7 and 9 of the 'I&B Code'.

84. However, the aforesaid principle for triggering an

application under Section 10 of the 'I&B Code' cannot be

made applicable as the 'Corporate Applicant' does not

claim money but prays for initiation of 'Corporate

Insolvency Resolution Process' against itself, having

defaulted to pay the dues of creditors."

4. The impugned order dated 29th January, 2018 passed by the

Adjudicating Authority being against the decision of this Appellate Tribunal

in 'M/s. Speculum Plast Pvt. Ltd.' (Supra), we set aside the order passed in C.P.

No. 1591/I&BP/2017 and remit the case to the Adjudicating Authority,

Mumbai Bench for appropriate orders. If the application is complete and

Company Appeal (AT) (Insolvency) No. 81 of 2018 4

there is no defect, after notice and hearing the parties, it will admit the

application. If there is defect, appropriate time be granted to the appellant to

remove the defects.

3. It will be open to the respondent to settle the dispute before admission of

the application. The appeal is allowed with the aforesaid observations. No

costs.

[Justice S.J. Mukhopadhaya] Chairperson

[Justice Bansi Lal Bhat] Member (Judicial) ns/uk

Company Appeal (AT) (Insolvency) No. 81 of 2018

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