9911796707
TMI Blog2017 (12) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... rbitration and Conciliation Act, 1996 preferred by appellant, it has been specifically pleaded by the appellant and not disputed by the respondent that the appellant filed an application to withdraw the application under section 9 of the Arbitration Act, expressly reserving liberty to institute fresh proceeding for interim relief. In such circumstances and as no arbitral dispute is pending, the application cannot be rejected. There is nothing on the record to suggest that the respondent disputed the claim prior to issuance of notice under section (1) of section 8 of the I&B Code. Thus we are of the view that the Adjudicating Authority, Mumbai Bench was not correct in holding that the application was barred by limitation. For the said rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct Agreement and the Addendum to the said agreement. Thereafter, since October, 2011 the corporate debtor failed to pay the conducting fee and, therefore, the operational creditor terminated the business conduct agreement. 4. On the ground that a sum of ₹ 3,92,38,405 is due from corporate debtor, the appellant - operational creditor issued notice under sub-section (1) of section 8 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as I B Code). The Respondent - corporate debtor, in its reply dated 18th March, 2017 denied the claim on the ground that the operational creditor has not duly performed its duty in terms of agreement. 5. After waiting for 10 days and having received such reply, the appellant - opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e debtor is not in possession of the premises, not carried on his business activities and the raising of the debit notes against the corporate debtor was illegal. It is to be noted that after the last payment in September, 2011, neither there was an acknowledgement of liability nor any payment by the corporate debtor. In this situation, the whole debit as claimed by the financial creditor is time barred. 12. Section 3(11) of IB Code provides that debt means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operation debt. When the debt is a time barred one, there is no legal obligation on the part of the corporate debtor to pay the same and due to lapse of time the right t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st that the Law of Limitation Act, 1963 is applicable. The I B Code, 2016 is not an Act for recovery of money claim, it relates to initiation of Corporate Insolvency Resolution Process. If there is a debt which includes interest and there is default of debt and having continuous course of action, the argument that the claim of money by Respondent is barred by Limitation cannot be accepted. 10. In Neelkanth Township and Construction Pvt. Ltd. vs. Urban Infrastructure Trustee Ltd. , Civil Appeal No.10711 of 2017, the parties raised before Hon ble Supreme Court the question of application of Limitation Act for initiation of Corporate Insolvency Resolution Process under I B Code. The Hon ble Supreme Court by order dated 23rd August 2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant filed an application to withdraw the application under section 9 of the Arbitration Act, expressly reserving liberty to institute fresh proceeding for interim relief. In such circumstances and as no arbitral dispute is pending, the application cannot be rejected. 14. There is nothing on the record to suggest that the respondent disputed the claim prior to issuance of notice under section (1) of section 8 of the I B Code. In the aforesaid background, we are of the view that the Adjudicating Authority, Mumbai Bench was not correct in holding that the application was barred by limitation. For the said reason the order rejecting the application cannot be sustained. 15. We accordingly set aside the impugned order dated 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
