9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (12) TMI 1318 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Time Limitation - HELD THAT - This Bench observes that under IBC Proceedings, the Limitation starts from the date of default. The Limitation Period for filing an Application under IBC, 2016 is 3 years from the date of default - the last unpaid invoice claimed under Part IV of the Application is 10.04.2014, whereas the present Application has been filed on 26.03.2021. Even if the Limitation is acalculated from the last date of Payment i.e., from 31.03.2014, the limitation would have expired on 30.03.2017 - the Applicant has nowhere pleaded in its Application that as to how the Application is to considered within the Limitation Period. Since the Application is not preferred within a period of 03 years from the date of default as well as from the date of part Payment, the present Application, not being filed within the limitation period, is time barred. Application dismissed.
Issues:
Initiation of Corporate Insolvency Resolution Process under Section 9 of IBC, 2016 based on compliance with Rule 5 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, and examination of Limitation period for filing the application. Analysis: 1. Initiation of Corporate Insolvency Resolution Process: The Applicant, an Operational Creditor, filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016, seeking to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor, Sercotech Power Systems Limited. The case revolved around the compliance of the Demand Notice with Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The Bench clarified that choosing Form 3 for sending the Demand Notice, annexed with unpaid invoices, was permissible when the debt arose from the provision of goods and services. The Bench's order on 02.07.2021 affirmed the legality of the Demand Notice format in the present case, ensuring compliance with the Rules. 2. Examination of Limitation Period: The matter proceeded to examine the Limitation period for filing the application. The Bench referred to the date of default stipulated under Part IV of the Application, which detailed the operational debt, transaction specifics, and the dates on which the debt fell due. Notably, the last unpaid invoice claimed by the Operational Creditor was dated 10.04.2014. The Applicant provided documents indicating acknowledgment of the claim and the last payment received on 31.03.2014. Despite the clear timeline, the application was filed on 26.03.2021, well beyond the 3-year Limitation Period from the date of default. The Bench noted the absence of any plea or event justifying consideration within the Limitation Period. No application for condonation of delay under Section 5 of the Limitation Act, 1963 was submitted. Consequently, the Bench held that the application was time-barred and dismissed it for not being filed within the prescribed Limitation Period. In conclusion, the judgment addressed the issues of compliance with the Demand Notice format under Rule 5 of the IBC Rules and the adherence to the Limitation Period for initiating the Corporate Insolvency Resolution Process. The decision highlighted the importance of timely filings within the statutory Limitation Period and the necessity for parties to adhere to procedural requirements under the Insolvency and Bankruptcy Code, 2016.
|
