9911796707
TMI Blog2020 (12) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... te Corporate Insolvency Resolution Process (CIRP) against Gammon India Limited (Corporate Debtor). 2. The Corporate Debtor is a listed public company limited by shares and incorporated on 15-6-1922 under the Companies Act, 1913, with the Registrar of Companies (RoC), Maharashtra, Mumbai. Its CIN is L74999MH1922PLC000997. Its registered office is at Gammon House, Veer Savarkar Marg, Prabhadevi, Mumbai 400025, in the State of Maharashtra. Therefore, this Bench has jurisdiction to deal with this petition. 3. The present petition was filed on 25-9-2018 before this Adjudicating Authority on the ground that the Corporate Debtor failed to make payment of a sum of Rs. 7,86,237.68 (Rupees seven lakh eighty-six thousand two hundred and thirty-seven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hirty-seven and sixty-eight paise only), as mentioned at page 32 of the Petition. 6. The Operational Creditor had served a Demand Notice in Form 3 dated 18-6-2018 to the Corporate Debtor (Exhibit '1', pp. 12-18) in terms of section 8 of the IBC. The Corporate Debtor has not replied to the Demand Notice. Necessary affidavit of No Dispute in terms of section 9(3)(6) of the IBC has been annexed at pp. 33-35. 7. Ms. Jinal Mehta, Learned Counsel i/b KS Legal & Associates, appeared on behalf of the Corporate Debtor and made her submissions. 8. In its reply dated 21-12-2018, the Corporate Debtor has set up the following defence:- (a) Form 5 at p. 4 of the petition does not mention the exact date when the alleged debt fell due. The Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Partnership Act, 1932 10. Section 69(2) of the Indian Partnership Act, 1932, reads as follows:- "No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm." 11. It is clear from the above that the provision would apply only to a 'suit' and not to proceedings. Applications filed under the IBC are not 'suits' but only proceedings, and therefore, we hold that the bar in terms of section 69(2) of the Indian Partnership Act, 1932, would not apply to applications filed under the IBC. On the question of limitation 12. In BK Edu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her, [2019] 10 SCC 353 at page 354 the Hon'ble Supreme Court emphasised that the date of coming into force of the IBC does not and cannot form a trigger point of limitation for applications filed under the Code. It further reiterated that since "applications" are petitions which are filed under the Code, it is Article 137 of the Limitation Act which will apply to such applications. 16. The date of default is stated to be 23-6-2015 and the petition was filed on 25-9-2018. Applying the ratio of the judgments quoted in paras 13 supra, and also noting that there is no acknowledgement of liability in terms of section 18 of the Limitation Act, 1963, before the expiry of the period of limitation, we hold that the present petition is barred by ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
