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TMI Blog2021 (6) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Supreme Court of India, in the matter of B.K. Educational Services Private Limited Vs. Parag Gupta And Associates [ 2018 (10) TMI 777 - SUPREME COURT] wherein it has held that Limitation Act is applicable since the inception of the Code while posing itself with a query as to whether the Limitation Act, 1963 will apply to Applications that are made under Section 7 and or Section 9 of the Code on and from its commencement on 01.12.2016 to 06.06.2018 (date of amendment of insertion of Section 238-A coming into effect). The applicability of the Limitation Act, 1963 during the Period of moratorium and the computation of the period of Limitation, specified for any Suit or Application by or against the Corporate Debtor, is required no doubt to be excluded and which exclusion points out that as compared to ordinary laws, IBC, 2016 is a separate Code by itself and being of recent origin (2016) is still in its nascent stage and evolving what with several amendments effected by the Legislature within 4 years and 3 months of its existence in the Statue Books - The Applicant, in the present case, would not be in a position to approach the Civil Court by way of a suit for recover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8,17,886/- was due and adding an interest @ 18% per annum which comes to the tune of ₹ 78,74,870/-. 4. It was also submitted by the Learned Counsel for the Applicant that the Corporate Debtor, as per the acknowledgment dated 21.08.2014 has agreed to pay damages to the tune of ₹ 20,00,000/- and thus, it was submitted, in all a sum of ₹ 1,41,92,756/- is due and payable by the Corporate Debtor to the Applicant. 5. Learned Counsel for Applicant submitted that on repeated follow up made by the Applicant to the Corporate Debtor, orally and in writing, the Corporate Debtor has made commitments to pay the outstanding dues, however, it has failed to adhere to the same. 6. It was also submitted that on 08.07.2014, the Applicant has received an e-mail from the Corporate Debtor stating that they vacated the premises and that they would arrange for payment of the balance rent which is due and payable. Subsequently, it was submitted that the Corporate Debtor has issued a cheque in favour of the Applicant, however, the same was returned with an endorsement Insufficient Funds and that the same was communicated to the Corporate Debtor. It was replied vide e-mail dated 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent has sought for dismissal of the present Application. 12. Heard the submissions made by the parties. The sequence of events in relation to the claims filed by the Applicant is extracted hereunder:- 13. After filing of the claim by the Applicant, the Respondent/IRP has rejected the claim vide e-mail communication dated 19.08.2020, by ascribing the reasons as follows:- Dear Sir, I am in receipt of proof of claim for ₹ 14192756/- in Form F sent under Regulation 9A IBBI - CIRP Regulation 2016 on behalf of M/s. Rasukumaki the Creditor represented by its partner Mr. Kuntal R. Amin and my observations as follows:- 1) The Proof of claim is submitted by Madhavi K. Amin instead of Kuntal R. Amin (refer Para No. 1 of Form F) 2) The Form F is dated 22-07-2020 and Notarised on the same date and sent to me by email on 19-08-2020 with a delay of almost a Month, without any justifiable reason. 3) The lease deed in question was executed on 10-08-2007 for a period of 5 years but not registered. 4) No documentary evidence demanding satisfaction of Claim was enclosed/attached. 5) The reported arrears of rent is for a period of 16 months from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Act, 1963 will apply to Applications that are made under Section 7 and or Section 9 of the Code (IBC, 2016) on and from its commencement on 01.12.2016 to 06.06.2018 (date of amendment of insertion of Section 238-A coming into effect). At this juncture, it is pertinent to refer to the Report of the Insolvency Law Committee of March, 2018 in this regard and more particularly paragraph 28.1 to 28.3 of the said Report and highlighting that the Code (IBC, 2016) could not have been to give a new lease of life to debts which are time barred and have thereby gone to give a finding by taking into consideration the above noted Report that the Limitation Act is applicable from the inception of the Code. A portion of the Report which has been extracted by the Hon'ble Apex Court reads as follows:- 28.2 Further, non-application of the law on limitation creates the following problems : first, it re-opens the right of financial and operational creditors holding time-barred debts under the Limitation Act to file for CIRP, the trigger for which is default on a debt above INR one lakh.* The purpose of the law of limitation is to prevent disturbance or deprivation of what may have been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the period of Limitation, specified for any Suit or Application by or against the Corporate Debtor, is required no doubt to be excluded and which exclusion points out that as compared to ordinary laws, IBC, 2016 is a separate Code by itself and being of recent origin (2016) is still in its nascent stage and evolving what with several amendments effected by the Legislature within 4 years and 3 months of its existence in the Statue Books. 19. The Applicant, in the present case, would not be in a position to approach the Civil Court by way of a suit for recovery of money, as the claim amount admittedly falls beyond the prescribed period of limitation and thereby by filing the present Application under Section 60(5) of IBC, 2016, cannot seek to enforce a claim, which is time barred as per the provisions of the Limitation Act, 1963 on the date of initiation of the CIRP itself. Hence, also on the said count, the Application as filed by the Applicant is liable to be dismissed. 20. Thus for the reasons stated, we find that the Respondent has rightly rejected the claim made by the Applicant in this regard and as such we are of the view that the rejection order passed by the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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