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TMI Blog2020 (2) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... harma, Advocates JUDGEMENT JUSTICE JARAT KUMAR JAIN, MEMBER(JUDICIAL) The Appellants, in the present Company Appeal (AT) (Insolvency) No.672 of 2019 are the Directors of M/s Debi Fabtech Pvt Ltd, 'the Corporate Debtor' against whom the Corporate Insolvency Resolution Process ('for short CIRP) has been initiated and moratorium has been imposed from the date of the admission till the completion of CIRP by the impugned order passed by National Company Law Tribunal, Kolkata Bench vide their order dated 25.4.2019. The Appellants are Mr.Sesh Nath Singh and Mr. Akshay Kumar Singh, Directors of the Corporate Debtor i.e. M/s Debi Fabtech Pvt Ltd in the said appeal filed under Section 61 of the Insolvency & Bankruptcy Code ('for short I&BC) 2016 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2014 possession notice under Section 13(4) of SARFEASI Act, 2002 alongwith Rule 9 of Security Interest (Enforcement) Rules 2002 has been issued against the corporate debtor and the possession order was issued on 11.5.2017 by the District Magistrate, Hooghly. On 27.8.2018, financial creditor has filed application under Section 7 of I&B Code before the Adjudicating Authority, NCLT, Kolkata Bench, Kolkata. 4. Learned Adjudicating Authority by its impugned order found that the corporate debtor did not dispute two facts that it has received loan from financial creditor and there is default in paying loan amount. Hence the application under Section 7 of I&B Code has been admitted and Corporate Insolvency Resolution Process against the corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months from the date of accrual of cause of action i.e. 31.03.2013 whereas as per Article 137 of Limitation Act the application may be filed within three years from the date of accrual of cause of action i.e. till 30.03.2016. Thus the application filed under Section 7 of I&B Code is apparently time barred, therefore, the Adjudicating Authority has wrongly admitted the application. Hence the impugned order is liable to be set aside. 7. Learned counsel for the Respondent vehemently opposed the arguments and submitted that it is true that the account was declared NPA on 31.03.2013. Thereafter, the Respondent exercised his remedy under the existing law within the prescribed limit i.e. on 18.1.2014 demand notice under Section 13(2) of SARFEASI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent), this period will be excluded and if this period of 3 years and 6 months is excluded then the application filed under Section 7 of the I&B Code is within limitation period. 8. We have considered the submissions of the learned counsel for the parties. 9. The corporate debtor has taken a ground that the application under Section 7 of I&B Code is time barred in the appeal itself. Such ground is not agitated before the Adjudicating Authority. Therefore, there is no finding of Adjudicating Authority on this issue. 10. We have carefully examined the issue of limitation. The Respondent has bonafidely prosecuted within limitation period under SARFEASI Act. Therefore, the Respondent is entitled for the exclusion of time period un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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