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TMI Blog2021 (3) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... dishonoured . The Learned Counsel for the Appellant have failed to make out any ground and the finding recorded by Ld. Adjudicating Authority, so we are affirmed the finding recorded in the impugned order passed by Ld. Adjudicating Authority, National Company Law Tribunal, Mumbai Bench. There are no merit in this Appeal - appeal dismissed. - Company Appeal (AT) (Insolvency) No. 366 of 2020 - - - Dated:- 4-3-2021 - [Justice Anant Bijay Singh] Member (Judicial) And [Ms. Shreesha Merla] Member (Technical) For the Appellant : Mr. Chandra Shekhar Gupta and Mr. Anand Shukla, Advocates. Mr. Rajender Jain, Party in Person. For the Respondents : Mr. Rajnish Kumar Jha, Advocate for Respondent No. 1. Mr. J. Ranawat, Advocate for Respondent No. 2. Mr. Atishay Jain, Mr. Ankit Acharya and Mr. Kunal Kanungo, Advocates for R-3. JUDGMENT Justice Anant Bijay Singh ; This appeal has been preferred by Mr. Rajendrakumar Kundanmal Jain (Shareholder Ex-Director) Appellant /Corporate Debtor, aggrieved and dissatisfied by the impugned order dated 13.02.2020 in CP (IB) 1016/IBC/MB/2019 passed by National Company Law Tribunal, Mumbai Bench whereby and where under, an appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.01.2015 40,592/- 229 23.01.2015 32,145/- 257 14.02.2015 79,089/- | Total Outstanding amount = ₹ 7,15,940/- 6. The Respondent No. 1 / Operational Creditor mentioned that the Appellant (herein) paid sum of ₹ 40,000/- vide cheque No. 110087 dated 16.02.2016 to the Respondent No. 1/ Operational Creditor. 7. The Respondent No. 1 adjusted the said amount to the running account of the Appellant leaving an outstanding amount of ₹ 6,75,940/- as due and payable under the said invoices, along with further interest @ 12% from the date of filing till realization of the payment which is described in particulars of claim. 8. The Appellant issued a cheque dated 12.01.2016 for a sum of ₹ 44,298/- to the Respondent No. 1. On presentation of the said cheque, it got dishonoured for the reason Payment stopped by drawer (Exhibits D D-1) at page 25 to 26 of the petition filed before the NCLT. 9. The Respondent No. 1 sent the confirmation of Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Ld. Adjudicating Authority. 16. It I further submitted that in the reply at page 97 to 104 of the Appeal Paper Book, the Appellant / Corporate Debtor raised objection of time barred claim but same was not considered by the Ld. Adjudicating Authority. 17. It is further submitted that there is no Claim, Debt, Operational Debt, due and payable by the Appellant / Corporate Debtor as falsely claimed by the Respondent No. 1 / Operational Creditor. 18. Learned Counsel for the Appellant relied on a judgment of Hon ble Supreme Court of India reported in 1967 (1) SCR 190 (Jiwanlal Achariya V/s Rameshwarlal Agarwalla) wherein para 10 reads as under: . 10. This brings us to the question of limitation. The facts are not in dispute now. The promissory note was executed on February 4, 1954. On the same date a post-dated cheque bearing the date February 25, 1954 was given by the defendant-appellant to the plaintiff-respondent, the intention being that on being realised it would be credited towards part payment. It was realised sometime after February 25, 1954 and was credited towards part payment, the appellant himself having made an endorsement admitting this part payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and was then paid is immaterial for it is the earliest date on which the payment could be made that would be the date where the conditional acceptance of a post-dated cheque becomes actual payment when honoured. We are therefore of opinion that as a post-dated cheque was given on February 4, 1954 and it was dated February 25, 1954 and as this was not a case of unconditional acceptance, the payment for the purpose of s. 20 of the Limitation Act could only be on February 25, 1954 when the cheque could have been presented at the earliest for payment. As in the present case the cheque was honoured it must be held that the payment was made on February 25, 1954. It is not in dispute that the proviso to s. 20 is complied with in this case, for the cheque itself is an acknowledgment of the payment in the handwriting of the person giving the cheque. We are therefore of opinion that a fresh period of limitation began on February 25, 1954 which was the date of the post-dated cheque which was eventually honoured. 19. Learned Counsel for the Appellant submitted that these facts are not considered by the Ld. Adjudicating Authority while passing the impugned order. In view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has rightly passed the impugned order, so there is no merit in the Appeal. FINDING 27. We have perused the records of the case, considered the arguments advanced on behalf of the parties and gone through the written submissions filed on behalf of Appellant. Taking the aforesaid facts and circumstances, we are of the considered view that the judgment (supra) relied by Learned Counsel for the Appellant is not applicable in the facts of this case in as much as the case which has relied by the Learned Counsel for the Appellant is that the promissory note was executed on 4th February, 1954 and on the same date a post-dated cheque dated 25th February, 1954 was given by the defendant/appellant to the plaintiff /respondent, in the facts of this case the Hon ble Supreme Court of India has held that the post-dated cheque issued on 04.02.1954 was unconditional acceptance for it was held and for the purpose of Section 20 of the Limitation Act. In terms of the Section 20 of the Limitation Act, a fresh period of limitation began on 25th February, 1954 which was the date of the post-dated cheque which was eventually honoured. 28. Wherein the instant case it is born from the recor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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