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TMI Blog2021 (2) TMI 1147X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the order dated 25.2.2020 passed by the Adjudicating Authority NCLT, New Delhi Bench-VI (hereinafter called Adjudicating Authority) in Company Petition No. IB-303/(ND)/2020. The Adjudicating Authority has dismissed the application under Section 9 of IBC filed by the Operational Creditor (Appellant) as being barred by limitation of time. 2. The case as stated in the appeal and argued by the Appellant is as follows:- (i) The Appellant Company and the Respondent Company are both limited liability companies incorporated and registered under the Companies Act, 1956. The Appellant Company is a marine electronics support, service provider and systems integrator, which specializes in designing and integrating communications and navigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 10.6.2012 which was cleared and amount credited in the appellant's account on 12.7.2012. (v) The matter regarding pending payment was discussed by the Appellant with the Respondent and M/s. Bajaj Hindustan Sugar Private Limited (for whom the Respondent Company was arranging Airtime Falcon services). Subsequently, the Appellant issued a legal notice to the Respondent on 30.09.2014 for making the outstanding payment. The Respondent vide reply dated 5.11.2014 informed that the owner of the Falcon Aircraft viz. M/s. Bajaj Hindustan Sugar Limited was liable to clear the pending dues as the Respondent was only maintaining, operating and running the aircraft. (vi) As the issue of payment of dues remained unresolved, the appellant filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in good faith before the Hon'ble High Court of Allahabad should be excluded in accordance with Section 14 of the Limitation Act, 1963 in computation of limitation for the Section 9 application under IBC. 5. In support of his case, the Learned Counsel for the appellant has referred to the judgment of the Apex Court in the case of Jignesh Shah & Anr v. Union of India & Anr; (2019) 10 SCC 750 wherein the Hon'ble Supreme Court has held that "...in matters pertaining to winding up petitions, Section 433 (e) read with Section 434 of the Companies Act would show that the trigger point for the purpose of limitation for filing of a winding-up petition under Section 433(e) would be the date of default in payment of the debt in any of the three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts debts" and trigger for limitation was the "neglect to pay its dues" after demand notice under the provisions of Section 433(e) and Section 434 of the Companies Act, 1956 was raised by the creditor. It is noted that in this winding up petition M/s. Pinnacle (Air) Private Limited (respondent in this appeal) was not made a Respondent. The case was heard by Hon'ble Court of Judicature at Allahabad (Lucknow Bench) and was dismissed as the petitioner was unable to produce convincing evidence in support of his contention and the petition was heard in full and dismissed on merits. The relevant portion of this order is reproduced below:- ".........There is no agreement or document filed before this court, whereby it can be concluded that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. xxxxxxxxxx Explanation.- For the purposes of section, - (a) In excluding the time during which a former civil proceeding as pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) A plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) Misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction." 9. The Ld. Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Hon'ble High Court on the ground that the question of fact involved in the petition as to whether the Respondent Company is liable to pay the amount or not, which can only be proved by detailed evidence. Thus, the Appellant has not fulfilled any of the conditions enumerated in Sub-Section 2 of Section 14 of the Limitation Act. 11. In such a situation, we are unable to accept the contention of the Appellant that the winding-up petition No.6 of 2015 was dismissed on the ground of mis-joinder of parties, and we are not persuaded to allow the Appellant the benefit of Section 14 of the Limitation Act, 1963. 12. Now we look at the date of filing application under Section 9 of the IBC. As mentioned in the impugned order, the winding up p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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