Sudhir T Deshpande vs Dhanada Corporation Ltd
- CitationCompany Appeal (AT) (Insolvency) No.1462 of 2022
Ratio decidendi
The rule this decision rests on
A claim under Section 7 of the Insolvency and Bankruptcy Code, 2016 that is filed beyond the limitation period is liable to be dismissed as barred by time, where the right to sue accrued more than three years before the application and there has been no acknowledgement of the debt within the limitation period. Where the Corporate Debtor has not acknowledged the debt after the relevant date, the financial creditor's Section 7 application cannot be saved from limitation by reference to an earlier acknowledgement, and the existence of a pending civil suit for recovery of the same debt does not prevent the Adjudicating Authority from rejecting the application as time-barred.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Gokul Exim Pvt. Ltd. ...Appellant
Versus
Grid India Power Cable Pvt. Ltd. ...Respondent
Present: For Appellant: Present but appearance not marked. For Respondent:
ORDER
12.12.2022: I.A. No. 4553 of 2022: This is an application praying for condonation of 33 days delay in re-filing the Appeal. The ground submitted is that certain defects were informed from time to time which took time in curing. Cause shown sufficient, re-filing delay is condoned. I.A. No. 4553 of 2022 is disposed of.
2. I.A. No. 4591 of 2022: This is an application praying for condonation of delay of 15 days in filing the Appeal. The ground taken is that the order was uploaded at the website on 29.08.2022 and thereafter some time was taken in consulting the advocates and files were sent to Delhi for preparing the Appeal. Cause shown sufficient, delay in filing the Appeal is condoned. I.A. No. 4591 of 2022 is disposed of.
3. This Appeal has been filed against order passed by the Adjudicating Authority on 26.08.2022 by which order application filed by the Appellant under Section 7 has been rejected. The application was filed by the Appellant under Section 7 on 13.12.2018. The date of the maturity of the amount as
Cont'd.../ -2-
per the case of the Appellant was 31.12.2011. It is submitted that thereafter there was acknowledgement in the year 2014. The Appellant has already filed a Special Civil Suit No.03 of 2015 in Aurangabad which is pending consideration. The application has been dismissed as barred by time.
4. We have heard the learned counsel for the Appellant and perused the record.
5. The Adjudicating Authority has recorded the finding that after 2013 the Corporate Debtor has never acknowledged the debt and Civil Suit for recovery of the debt is pending consideration.
6. We are of the view that no error has been committed by the Adjudicating Authority in rejecting the application as barred by time. Appellant has already filed Civil Suit No. 03 of 2015, which is pending. It is always open for the Appellant seek remedy as permissible in law. Section 7 application being filed beyond three years from when right to sue arose and there being no acknowledgement, application under Section 7 has rightly been dismissed as barred by time. Accordingly, Appeal is dismissed.
[Justice Ashok Bhushan] Chairperson
[Barun Mitra] Member (Technical) Archana/nn
Company Appeal (AT) (Insolvency) No. 1462 of 2022
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