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TMI Blog2021 (10) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Debtor - further apart from the emails, there is no other document to show that the Corporate Debtor has ever acknowledged the debt of the petitioner. Hence, the benefit of Section 18 of Limitation Act cannot be allowed. Since, the default as per the averments made in demand notice as well as Part-IV of the application was occurred on 31.12.2016 and the petition is filed on 16.03.2020. Whereas, in view of Article 137 of the Limitation Act, the petition must be filed within three years when right to apply accrues. But it is filed on 16.03.2020 i.e. much after the three years when the default has occurred - the present application is barred by limitation and the same is liable to be dismissed. Application dismissed. - Company Petition (IB) No. 791/ND/2020 - - - Dated:- 8-10-2021 - Abni Ranjan Kumar Sinha, Member (J) And Kapal Kumar Vohra, Member (T) For the Appellant : Vivek Malik, Adv. For the Respondents : Amit Punj, Adv. ORDER Abni Ranjan Kumar Sinha, Member (J) 1. The present petition is filed under Section 9 of Insolvency and Bankruptcy Code, 2016 by the operational creditor, i.e. Shree Rizwan Khaleel for initiation of Corporate Insolven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the various requirements listed in the mail dated 28.06.2017. Finally, on 20.10.2019, the Corporate Debtor provided the much required No-Objection Certificate to the Operational Creditor permitting the Operational Creditor to seek/obtain employment outside the Corporate Debtor. It would be pertinent to state, that such No-Objection-Certificate was provided unduly belatedly, through Notification dated 27.10.2009 issued by the Office of the Director General of Civil Aviation explicitly mandates, that such No-Objection may be provided immediately on the expiry of the notice period of six-months . x. Further, vide emails dated 21.11.2019 exchanged between the Operational Creditor and the Corporate Debtor, the Operational Creditor seeks re-payment of his pending dues by way of unpaid salary for the months of November-December, 2016 and unpaid dues towards gratuity. It is contended by the Operational creditor that, by their response, instead of complying the Corporate Debtor queried, as to why, the dues had been delayed for so long. By their further response(s), they assured the Operational Creditor that they were processing the Operational Creditor's dues, in stating- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he next two days i.e. 09.11.2016 and 10.11.2016 was OFF for the petitioner. From 11.11.2016 till 25.11.2016, the Petitioner/OC reported 'SICK' every day. On and after 25.11.2016, the Petitioner/OC was supposed to have reported to CME (Chief Medical Examiner) as well as before the panel of DGCA Doctor to obtain his 'fit to fly' certificate. It was mandatory for the Petitioner/OC to get the said certificate in as much as he was reporting himself 'SICK' continuously for more than 14 days. The Petitioner/OC failed to appear before the CME and continuously reported himself 'SICK until 29.11.2016. The Crew Roster of the Petitioner/OC, maintained by the Respondent Company clearly reflects the aforesaid factual position. v. Further, despite repeated calls and reminders, the Petitioner/OC failed to either report before the CME or to produce a valid and legal 'Medical Certificate' at any stage, thereafter. vi. Further, after 29.11.2016, the Petitioner/OC was un-contactable. The Flight Operations department of the Company tried to contact the Petitioner/OC many a times, but he never responded to any phone call made by the said department of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal Certificate or produce himself for examination before the CME. iii. Since, the Duty Manager Security reached the Petitioner's residence with the demand that the Company ID Card AEP be handed over to them, the Petitioner complied with their instructions to avoid any allegation of breach or disobedience. iv. The petitioner enclosed the following documents with the rejoinder: a. Letter/Handing over Certificate dated 30.11.2016 issued by the Duty Manager Security, Bangalore Airport to the Operational Creditor for receiving the Company ID Card AEP. b. A Certificate dated 03.11.2017 issued by Capt. Bhavesh Misra, Chief of Flight Safety acknowledging that the Petitioner was employed with the Respondent from 01.11.2011 till 31.12.2016. c. A Certificate dated 19.11.2020 issued by Capt. Mahender Singh, Chief of Flight Safety acknowledging that the Petitioner was employed with the Respondent from 01.11.2011 till 31.12.2016. d. Member Service History dated 06.11.2020 issued by the Employees Provident Fund Organisation, India recording the date of joining as 01.1.2011 and date of exit as 31.12.2016. e. E-mail dated 03.01.2017 issued by the Operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not barred by limitation on the ground that debt is acknowledged by the Corporate Debtor. 8. He has also referred to email dated 21.11.2019 exchanged between the parties and submits that vide this email, the Corporate Debtor has acknowledged the debt. 9. He further contended that since the debt has been acknowledged in November, 2019. Therefore, from that period the application is within time. 10. On the other hand, Ld. Counsel for the Corporate Debtor submits that email dated 21.11.2019 never shows that the debt has been acknowledged because the previous correspondence made in between the petitioner and the Human Resource Department of the Corporate Debtor shows that as per note of office, no salary was pending. 11. Ld. Counsel also referred to email dated 21.11.2019 and submits that vide this email the Mr. Parveen Sharma, Human Resource Department has informed the petitioner that no salary was pending as per the note of the office. 12. Since, both the parties are placed reliance upon the email exchanged between the petitioner as well as Mr. Parveen Sharma, Human Resource Department of the Corporate Debtor. Therefore, we would like to refer the emails which are at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il has sent on 2:30 PM) then we are of the considered view that these emails exchanged in between the parties do not show the acknowledgement of debt towards the salary for the period of November and December 2016. Rather, it was made clear by the Human Resource Department of Corporate Debtor that as per note, no salary is due. Therefore, in our considered view, on the basis of these emails, we are unable to accept the contention of the petitioner that these emails are amounts to acknowledgement of debt by the Corporate Debtor. 21. We further notice that, apart from these emails, there is no other document to show that the Corporate Debtor has ever acknowledged the debt of the petitioner. Hence, we are unable to give the benefit of Section 18 of Limitation Act. 2. Since, the default as per the averments made in demand notice as well as Part-IV of the application was occurred on 31.12.2016 and the petition is filed on 16.03.2020. Whereas, in view of Article 137 of the Limitation Act, the petition must be filed within three years when right to apply accrues. But it is filed on 16.03.2020 i.e. much after the three years when the default has occurred. 23. Hence, the present ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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