9911796707
TMI Blog2021 (5) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Debtor gave rise to a right to the Applicant to payment. Meanwhile however, the Corporate Debtor issued another cheque dated 15.12.2002 for the balance amount of ₹. 4,62,066/-. It was dishonoured by the bank on 05.06.2003. The said claim amount of ₹. 4,62,066/- thus became due and payable with effect from 05.06.2003. It could only be realized in terms of Article 31 of the Limitation Act, within three years thereof. The Applicant did not take any action/step for realization of the amount within that period nor did he issue any demand for the said amount. Considering the broad sentiments expressed by the Hon ble Courts with respect to adjudication of claim on merits and the fact that the Applicant was a retired employee, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discounting charges of ₹. 26,580/-) in connection with the sale of Raw Asbestos Fiber covered under invoice dated 27.08.2001. iii. The Corporate Debtor under a letter dated 30.08.2001 issued a postdated cheque (PDC) for ₹. 5,25,844/- drawn on Karnataka Branch Limited, Fort Branch Mumbai, bearing No. 720869 dated 26.02.2002 in favour of the Applicant towards discharge of liability. iv. However, on 04.03.2002 the Corporate Debtor enclosed a Promissory Note along with a fresh cheque bearing No. 028901 dated 27.05.2002 for said amount towards discharge of the Demand Promissory Note. It also enclosed another cheque for ₹. 27,229/- bearing No. 028600 towards discounting charges from 26.02.2002 to 26.05.2002 (90 days) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... li Branch on 29.05.2003. The Bank by its advice dated 05.06.2003 dishonoured the cheque on the ground of insufficient funds . vii. After the dishonor of cheque the Applicant tried to reach the Corporate Debtor for recovery / payment of the default amount, to no avail. Efforts by the Applicant to recover the amount through the Reserve Bank of India, Office of the Commissioner of Police, Mumbai and the Investors Grievances Forum under RoC-Mumbai bore no fruit. Then the Applicant came to know that the Corporate Debtor had gone into CIRP. He got in touch with the Respondent through an email dated 29.02.2020 raising a claim of ₹. 4,68,066/-. The Respondent by his email dated 02.03.2020 replied that the Corporate Debtor was under li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Debtor on 27.05.2002 in favor of the Applicant. The Promissory Note contained that the Corporate Debtor would pay the amount at 182 days from that date and issued a PDC for the said amount dated 25.11.2002. Thus, the debt was payable on 25.11.2002 for which date the cheque was issued. 6. Apparently, the cheque was either not encashed or was not honoured. There is however no averment with regard to the presentation of the cheque dated 25.11.2002. Subsequently, the Corporate Debtor made a payment of ₹.16,582/- leaving a balance of ₹. 4,62,066/-. The Corporate Debtor then issued a cheque for the remaining amount of ₹. 4,62,066/- bearing no. 812242 dated 15.12.2002. The Applicant deposited the cheque with his Bank o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within that period nor did he issue any demand for the said amount. As per his averments, the due date of making a claim before the liquidator expired on February 2018. The fact of CIRP of a Company and it going under liquidation is publicized through public announcement made under Regulation 6 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and Regulation 12 of the IBBI (Liquidation Process) Regulations, 2016, respectively, for the creditors to submit their claims before the Resolution Professional or the Liquidator, as the case may be. The Applicant did not make any claim either before the Resolution Professional or the Liquidator within the prescribed time limit. His claim was rejected by the Liquidato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss sufficient cause for not preferring the appeal within the prescribed time. Therefore, the present appeal would be grossly barred by limitation. Even otherwise the claim was also barred by limitation having been filed after 04.06.2006 (three years from 05.06.2003) and was thus not due and payable. 11. It would presently be profitable to take a leaf out of the observations of the Hon ble Apex Court in Robin Thapa v. Rohit Dora (Civil Appeal No. 4507 of 2019 decided on 8 July, 2019) held, Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that as far as possible ..... X X X X Extracts X X X X X X X X Extracts X X X X
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