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TMI Blog2019 (7) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... up petition was filed before the Hon ble High Court of Judicature at Madras which had not reached finality and in the meantime, as the I B Code came into force, the demand notice under Section 8(1) was issued on 14th November, 2017 for payment of outstanding amount along with the interest. Thus, as we find that there is continuous cause of action the claim is within the period of limitation. Case remitted to the Adjudicating Authority for admission of the case after notice to the parties - appeal allowed by way of remand. - Company Appeal (AT) (Insolvency) No. 118 of 2019 - - - Dated:- 23-7-2019 - Mr. S.J. Mukhopadhaya (Chairperson), Mr A.I.S. Cheema Member(Judicial) and Kanthi Narahari Member(Technical) For Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from the document placed at page 60 of the typed set filed with the Application. Thereafter, there is nothing on record to suggest that at any point of time the Corporate Debtor confirmed/ acknowledged the debt. In the circumstances, the claim has become time barred and in view of the judgment of the Hon ble Supreme Court passed in B.K.Educational Services Pvt. Ltd. vs- Parag Gupta and Associates (2018 SCC Online SC 1921), the Petition stands dismissed. 2. Learned counsel appearing on behalf of the Appellant submitted that the claim is not barred by limitation, the Adjudicating Authority without citing the relevant facts and reasons referred to the decision of the Hon ble Supreme Court in B.K. Educational Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. For filing an application under Section 9, no period of limitation has been prescribed in any of the Division or part of Schedule of the Limitation Act, 1963 , therefore, Article 137 of Part II of 3rd Division of Schedule to the Limitation Act, 1963 will be applicable, which reads as follows: Part II-OTHER APPLICATION Description of application Period of Limitation Time from which period begins to run When the right to apply accrues 137. Any other application for which no period of limitation is provided elsewhere in this division. Three year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, the Appellant- ( Operational Creditor ), issued legal notice on 6th May, 2013 to the Corporate Debtor calling upon it to pay the outstanding amount. The Corporate Debtor by reply dated 17th May, 2013, admitted the outstanding dues and agreed to pay the same within six months. 13. According to the Appellant, on considering the business relationship and relying on assurance of the Corporate Debtor to clear its dues in instalments, the Operational Creditor vide letter dated 21st May, 2013 offered discount of 10% on the outstanding amount. The offer given by the Corporate Debtor was also accepted by the Operational Creditor as it was informed that the amount will be paid in five monthly instalments commencing from 1st J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding winding up proceeding pending before the Hon ble High Courts stood transferred to the Tribunal. In this background, the notice was issued by the Operational Creditor under Section 8(1) calling upon the Corporate Debtor to pay a sum of ₹ 38,84,709/- with interest at the rate of 24% p.a. Thereafter, the Corporate Debtor having failed to pay the amount, the application under Section 9 was filed by the Appellant- ( Operational Creditor ). 17. The aforesaid facts brought to the notice of the Adjudicating Authority in Part IV of Form-5 (application under Section 9) have not been considered by the Adjudicating Authority nor discussed and without going into the facts and law, the Adjudicating Authority held that the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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