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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 ..... and for want of any other averment in regard to acknowledgement - the issue decided in favor of Appellant and against the Respondent No. 1. Genuintiy of cheque relied upon to establish acknowledgement of debt - HELD THAT:- The Appellant has filed I.A. before the NCLT, Kolkata Bench on 27th August, 2018 with a prayer to direct the Financial Creditor to produce 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 - decided in favour of the Appellant and against the Respondent No. 1. Thus, 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 which the Respondent No. 1 disputed, no reliance could be placed on the aforesaid document. The impugned order cannot be sustained in the eye of Law - application dismissed. - [ Justice Anant Bijay Singh ] Member ( Judicial ) [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts (herein) regarding the dishonour of the aforesaid cheque and demanding the sum of ₹ 25,00,000/- 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 8. The Learned Counsel for the Appellants during the course of argument and also their Reply Affidavit filed before the NCLT, Kolkata Bench, Kolkata is that the Application under Section 7 of the IBC hit by limitation and denial of taking loan of ₹ 25,00,000/- on interest for short time was given by the Financial Creditor and the fact that the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Ltd. does not advance the cause of the respondent No. 2. 12. It is further submitted that in view of the fact that date of default admittedly mentioned in the Application filed by the Respondent No. 1 before the NCLT, Kolkata Bench, Kolkata is 1st April, 2014 and the Application under Section 7 of the IBC was filed on 17th April 2018. The Ld. Adjudicating Authority failed to consider that the Application is hit by limitation. 13. It is further submitted that the specific plea has been taken by the Respondents that the cheque in question was forged document. The acknowledge of debt was not stablished and no finding recorded by the Ld. Adjudicating Authority is miss directed. Submissions on behalf of the Respondent No. 1 14. The Learned Counsel for the Respondent No. 1 during the course of argument and in his Written Submissions submitted that the Application under Section 7 of the IBC filed within limitation. 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 applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 stating the date of default as 08.07.2011 in the application. That being the position, no case for extension of period of limitation is available to be examined. In other words, even if Section 18 of the Limitation Act and principles thereof were applicable, the same would not apply to the application under consideration in the present case, looking to the very averment regarding default therein and for want of any other averment in regard to acknowledgement. In this view of the matter, reliance on the decision in Mahaveer Cold Storage Pvt. Ltd. does not adva ..... X X X X Extracts X X X X X X X X Extracts X X X X
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