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TMI Blog2020 (8) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... itation, we are of the firm opinion that the proceedings before the DRT and other forums, will not get the benefit of extending the limitation period merely on the basis of pending proceedings before the DRT. In this regard, it is unequivocal and settled law that the IBC is a complete Code and as per Section 238 of IBC it has overriding effect on other laws. Therefore, pending proceedings before other forums, the limitation will not get extended. There are no illegality in the order passed by Adjudicating Authority in rejecting the Application filed by the Appellant-Bank under Section 7 of IBC - appeal dismissed. - Company Appeal(AT) (Insolvency) No. 1184 of 2019 - - - Dated:- 5-3-2020 - [Justice Venugopal M.] Member (Judicial) , (Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent No. 1 as NPA on 23.05.2014 whereas the Application was filed by the Appellant Bank in the month of January,2019. Therefore, the Application was barred by limitation. 4. After hearing the parties, the Adjudicating Authority passed a detailed order rejecting the Application of the Appellant held that the Application filed by the Appellant-Bank was not within the period of limitation. The observations of the learned Adjudicating Authority are reproduced hereat in verbatim: 10. As per the particulars of Financial Debt provided in Part-IV of the Application and para-11 of the rejoinder submitted by the Applicant Corporation Bank, Account of the Respondent No. 1 was classified as non-performing asset on 23.05.204 as per the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 137 of the Limitation Act, save and except in those cases where, in the fact of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application . 13. That the Petitioner has placed two Letters dated 08.09.2015 showing Acknowledgement of Debt/ Liability by the Borrowers made by the Respondent. Even if one takes into account the abovementioned acknowledgement letters, the limitation gets extended till 07.09.2018 only. However, the Petition in the instant case by the Financial Creditor is filed only on 05.02.2019. Further, the Respondent Company has raised a specific objection in its reply regarding maintainability of the application on the round of limitation. The Petitioner has failed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific mention with regard to date of NPA i.e., 23.05.2014. Accordingly, the limitation will be ticking from the date of declaration of NPA i.e., 23.05.2014, however, the Application filed by the Appellant before the Adjudicating authority is on 05.02.2019. As per the judgment of the Hon ble Supreme Court in the matter of B.K. Educational Services Pvt. Ltd. Vs. Parag Gupta Associates passed in Civil Appeal No. 23988 of 2017 reported in (2019) 11 SCC 633 dated 11.08.2018, the Hon ble Supreme Court at paragraph-27 of the judgment clearly held as under: 27. It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating Authority rightly rejected the Application filed by the Appellant. With regard to the letter dated 08.09.2015 is concerned, learned Counsel for the Appellant contented that from the date of acknowledgement, the limitation will get ticking and three-year period will have to be counted from 08.09.2015 in pursuance of Article 18 of the Limitation Act, 1963 and taking into consideration, the letter dated 08.09.2015, the Application is within limitation. Even without admitting the letter is considered as an acknowledgment, still the Application filed under Section 7 of IBC by the Appellant is barred by limitation since, the Application under Section 7 IBC was filed on 05.02.2019 and three-year period expires on 08.09.2018. In so far as Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of extending the limitation period merely on the basis of pending proceedings before the DRT. In this regard, it is unequivocal and settled law that the IBC is a complete Code and as per Section 238 of IBC it has overriding effect on other laws. Therefore, pending proceedings before other forums, the limitation will not get extended. 12. Further the learned Counsel for the Appellant contend that as per Section 7(5)(a), where the Adjudicating Authority is satisfied that (a) a default has occurred and the Application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application. As per Section 7 of IBC; financial creditor can init ..... X X X X Extracts X X X X X X X X Extracts X X X X
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