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TMI Blog2021 (3) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... shek Sharma, Advocate for Respondent No. 2 / IRP. JUDGMENT Justice Anant Bijay Singh , This appeal has been initially preferred by 'Durga Prasad Agarwal and Biswanath Mondal- Appellant /Corporate Debtor, aggrieved and dissatisfied by the impugned order dated 21.11.2019 in CP (IB) No. 535/KB/2018 passed by National Company Law Tribunal, Kolkata Bench, Kolkata whereby and where under, an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (in short IBC) was filed by 'Limtex Tea & Industries Limited' -Respondent No. 1 (Financial Creditor) was admitted for initiation of 'Corporate Insolvency Resolution Process' (in short CIRP) against the Company (Appellant / Corporate Debtor). 2. From the perusal of the orders dated 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,00,000/- within 15 days from the receipt of the notice sent through speed post which was received by Corporate Debtor / Appellants (herein) on 30th June, 2015. 6. The Corporate Debtor / Appellants (herein) has neglected to pay the said sum, thereby compelling the Financial Creditor to file a case under Section 138/141 of N.I. Act, against the Corporate Debtor / Appellants (herein). 7. On 23rd February, 2018 the Financial Creditor / Respondent No. 1 (herein) again sent a letter requesting the Corporate Debtor / Appellants (herein) to pay the aforesaid amount but they were no response and Application under Section 7 of the 'IBC' was filed on 17th April, 2018 before the NCLT, Kolkata Bench, Kolkata. Submissions on behalf of the Appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n stated for the purpose of maintaining the application under Section 7 of the Code, and not even a foundation is laid in the application for suggesting any acknowledgement or any other date of default, in our view, the submissions sought to be developed on behalf of the respondent No. 2 at the later stage cannot be permitted. It remains trite that the question of limitation is essentially a mixed question of law and facts and when a party seeks application of any particular provision for extension or enlargement of the period of limitation, the relevant facts are required to be pleaded and requisite evidence is required to be adduced. Indisputably, in the present case, the respondent No. 2 never came out with any pleading other than statin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That the date of default was 22.06.2015 when the cheque was dishonoured insufficiency and the Application under Section 7 of the IBC was filed on 17.04.2018 within three years of date of limitation from the date of default, so the 'Babulal Vardharji Gurjar' case is not applicable in the matter. 15. Learned Counsel for the Respondent No. 1 further relied on an order dated 24.10.2019 passed by Ld. NCLT, Allahabad Bench in Company Petition (IB) No. 353/ALD/2018 wherein paragraph Nos. 10 to 15 it was held that the Corporate Debtor will not be allowed to take refuge under technicalities when the pleadings otherwise disclose that the date of default within limitation. 16. The Learned counsel for the Respondent No. 1 submitted that the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the judgment of Hon'ble Supreme Court of India reported in 2020 SCC OnLine SC 647 'Babulal Vardharji Gurjar V/s Veer Gurjar Aluminium Industries Pvt. Ltd. and Anr.' wherein paragraph 96 is as under: "96. Therefore, on the admitted fact situation of the present case, where only the date of default as '08.07.2011' has been stated for the purpose of maintaining the application under Section 7 of the Code, and not even a foundation is laid in the application for suggesting any acknowledgement or any other date of default, in our view, the submissions sought to be developed on behalf of the respondent No. 2 at the later stage cannot be permitted. It remains trite that the question of limitation is essentially a mixed question of law and fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uce the original cheque so that it may be sent to the Questioned Document Investigation Department, CID, West Bengal for verification, but no order was passed by the Adjudicating Authority and no reliance could be placed on the aforesaid document. As the Appellant disputed the cheque in question as it is disputed document, did not decide this issue and no order. So the Issue No. 2 is also decided in favour of the Appellant and against the Respondent No. 1. 19. After going through the records and having heard the counsel for the parties, we are of the considered view that the Ld. Adjudicating Authority have failed to consider the facts that Application under Section 7 of the IBC is barred by limitation and secondly, that so called cheque on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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