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2022 (8) TMI 997 - Tri - Insolvency and BankruptcyMaintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - whether the present application is filed within limitation? - HELD THAT - It can be seen from the records that the date of default mentioned in Form 1 Part IV is 15.09.2015 and this petition is re-filed vide Diary No. 01099 dated 30.09.2021. Pursuant to this query, it is explained by the learned counsel for the petitioner there is also subsequent default, when the cheque was bounced. But this fact is not clearly mentioned in Part IV - it may be noted that although in above compliance affidavit the last cheque provided by the respondent to the applicant got bounced/dishonoured on 18.09.2017 for an amount of Rs. 69892 has been mentioned but there is no cogent evidence provided which shows bouncing of any cheque, instead bouncing of ECS Instrument as stated in the said affidavit. As per the mentioned date of default i.e. 15.09.2015, the limitation period ends up in the month of September, 2018 but the present petition is re-filed on 30.09.2021 vide Diary No. 01099. Also the date of default as per the record available with information utility in respect of debt is 30.06.2016 and the date of last repayment is 19.08.2015 for an amount of Rs. 69,892.00/-. Even if the last date of default is taken as 30.06.2016, then also it is badly time barred. The above-said arbitration award for recovery of Rs. 23,66,868/- has been made on 25.02.2016 which again emphasise that even after passing the award no payment was made thus, the instant petition is beyond the limitation period. The present petition is time barred. Section 3 of Limitation Act, 1963 is imperative and casts a duty upon the Court to dismiss an application barred by time although limitation has not been set up as a defence - As held in Ashis Kumar Hazra V. Rubi Park Co-operative Housing Society Ltd. 1997 (5) TMI 452 - SUPREME COURT that under Section 3, it is the duty of the Court to ensure that unless proper explanation is given, the valuable right cannot be defeated. It is also held in Lachhman Singh V. Hazara Singh 2008 (5) TMI 747 - SUPREME COURT that limitation is a question of jurisdiction Section 3 puts embargo on the court to entertain a suit if it is found to be barred by limitation. The present petition is not filed within the prescribed period of Limitation, whereas, every petition/application should be filed within the prescribed period of three years and if not filed, it is liable to be dismissed in view of Section 3 of the Limitation Act - Petition dismissed.
Issues:
- Filing of petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 - Default in repayment by the corporate debtor - Jurisdiction of the Tribunal - Compliance with procedural requirements - Consideration of limitation period Analysis: 1. Filing of Petition: The petition was filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 by the Financial Creditor to initiate Corporate Insolvency Resolution Process against the Corporate Debtor. The petition detailed the loan agreement, defaults in repayment, and arbitration proceedings initiated by the Financial Creditor due to non-compliance by the Corporate Debtor. 2. Default in Repayment: The Financial Creditor provided evidence of default by the Corporate Debtor, including defaults in the repayment schedule, issuance of loan recall cum Arbitration Notice, and subsequent failure to honor financial obligations. The total amount claimed to be in default was specified in the petition, along with the date of default. 3. Jurisdiction of the Tribunal: The jurisdiction of the Tribunal was established based on the incorporation details of the Corporate Debtor and its registered address falling within the jurisdiction of the Bench. The Tribunal issued notices to the respondent, and upon non-appearance, the respondent was set ex-parte. 4. Compliance with Procedural Requirements: The petition included necessary documents such as the loan agreement, master data of the corporate debtor, and details of defaults. The Tribunal considered the requirements under Section 7(3) & (5) of the Code, emphasizing the need for completeness and accuracy in the application. 5. Consideration of Limitation Period: The crucial issue addressed was whether the petition was filed within the limitation period. The Tribunal examined the date of default, subsequent defaults, and compliance affidavits submitted by the petitioner. It was noted that the petition was re-filed after the limitation period, rendering it time-barred under Section 3 of the Limitation Act, 1963. 6. Conclusion: The Tribunal, after thorough analysis, concluded that the petition was beyond the prescribed limitation period and therefore dismissed the company petition. The decision was based on the imperative nature of the limitation period under the law, emphasizing the jurisdictional aspect and the duty of the Court to dismiss applications barred by time, even without it being raised as a defense.
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