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TMI Blog2017 (5) TMI 1602X X X X Extracts X X X X X X X X Extracts X X X X ..... fails and dismissed. - C.P. No.(IB)(108)(PB)/2017 - - - Dated:- 25-5-2017 - CHIEF JUSTICE M. M. KUMAR PRESIDENT And Ms. DEEPA KRISHAN MEMBER (T) Anush Raajan Advocate For Petitioner Uddyam Mukherjee Advocate For Respondent ORDER It is a material and substantive fact to notice at the outset that default of unpaid debt occurred in September, 2013 as it is expressly mentioned in the demand notice itself (Annexure-I) dated 16.02.2017 and the same reads as under: PARTICULARS OF OPERATIONAL DEBT TOTAL AMOUNT OF DEBI. DETAILS OF TRANSACTIONS ON ACCOUNT OF WHICH DEBT FELL DUE, AND THE DATE FROM WHICH SUCH DEBT FELL DUE Total amount of debt: ₹ 71,93,843/- (Rupees Seventy One Lakhs Ninety Three Thousand Eight Hundred and Forty Three) for the period of October, 2012 to September 20, 2013. as salary from Sathyam. along with interest @ 18% from the date of salary becoming due until payment and/or realization thereof. Debt amount fell due from: October 2012 AMOUNT CLAIMED TO BE IN DERAULT AND THE DATE ON WHICH THE DEFAULT OCCURRED Amount ₹ 71,93,843/- (Rupees S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner, as against the respondent giving a ground for triggering the insolvency process as contemplated under IBC is time barred and hence the petition is liable to fail keeping in view the provisions of IBC as delineated hereunder:- 'Debt' is defined under section 3(11) of IBC to mean a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt. Claim is defined under sec 3(6) of IBC as follows: (a) a right to payment, whether or not such right is reduced to judgment, fixed, disputed, undisputed, legal, equitable, secured or unsecured; (b) right to remedy for breach of contract under any law for the time being in force, if such breach gives rise to a right to payment, whether or not such right is reduced to judgment, fixed, matured, unmatured, disputed, undisputed, secured or unsecured; It is also relevant to consider the definition of 'operational debt' and 'operational creditor' which seems to have given rise to the instant petition. Operational debt is defined under sec 5(21) of IBC to mean a claim in respect to the provision of goods or services including employment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and has argued that in the absence of any provision made by the Insolvency and Bankruptcy Code, 2016 (for brevity 'IBC') expressly incorporating the provision of the Limitation Act, no such provision can be read into the 'IBC'. Learned Counsel has also pointed out that this Tribunal must perform its functions within the parameters laid down by IBC. The argument proceeds that the IBC is a consolidated piece of legislation as is patent from the reading of its preamble. in that regard, Mr. Mehta has also drawn our attention to Section 238 of IBC and has argued that this is a non- obstante clause which provide that the 'IBC' will have its effect notwithstanding anything inconsistent therewith contained in other laws for the time being in force. 4. It is pertinent to mention that in the present case the default has occurred in respect of non-payment of salary for the period October 2012 to September 20, 2013. The present petition has been filed before this Tribunal on 12.05.2017. If the period of three years is applied, it expires on September 20, 2016. It is thus obvious that the claim has been made long after the expiry of period of three years. In the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs by the court. Even no period of limitation is prescribed in relation to a writ proceeding. In terms of provisions of the 1992 Act, no period of limitation is prescribed, evidently because the Parliament thought it to be wholly unnecessary. Once the statutory operation relating to the attachment of the property belonging to a notified person comes into being, the duties and functions of the Special Court start. In relation to the duties and functions required to be performed by a court of law, no period of limitation need be prescribed. The attachment of the properties of the notified party being for specific purposes i.e. for the purpose of discharging his liabilities, the Special Court is bound to pass appropriate orders in relation thereto. A property once attached shall remain under attachment till an appropriate order is passed. It is, therefore, idle to contend that even in respect thereof the provisions of the Limitation Act would apply. 7. A proceeding before the Special Court is not a suit for recovery of an amount. The proceedings before the Special Court are extraordinary in nature. The provisions of the Limitation Act would inter alia apply only when a suit is fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that regard, Section 60(6) makes an interesting reading which is as under: (6) Notwithstanding anything contained in the Limitation Act, 1963 or in any other law for the time being in force, in computing the period of limitation specified for any suit or application by or against a corporate debtor for which an order of moratorium has been made under this Part, the period during which such moratorium is in place shall be excluded A perusal of the above quoted provision would show that for computing the period of limitation specified for any suit or application by or against a corporate debtor, the period during which such moratorium has remained in operation is to be excluded. In other words, if the resolution of insolvency has failed then in case a suit or application is filed then moratorium period has to be excluded. If an Operational Creditor has approached the NCLT after three years or prescribed period of limitation then, how his claim in the suit or application could be within the period of limitation prescribed. The simple result flowing from the plain reading of Section 60(6) IBC is that the claim made before the NCLT must also be within the period of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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