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TMI Blog2022 (3) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... h the copies of the said judgments before the Hon ble Chairperson of NCLAT , Principal Bench, New Delhi, for constituting an appropriate Bench / nominating the Hon ble Third Member for rendering his Opinion / Decision in Appeal . - COMPANY APPEAL (AT)(CH)(INSOLVENCY) No.29 OF 2022 - - - Dated:- 21-3-2022 - Justice M. Venugopal Member (Judicial) And Kanthi Narahari Member (Technical) For the Appellant : Mr. P.H. Arvind Pandian, Sr. Advocate For Mr. Avinash Krishnan Ravi, Advocate. Mr. G.S. Ramarao Ms. Jerin Asher Sojan Advocates Mr. Naveen For the Respondents : Mr. Vijay Narayan, Sr. Advocate For Mr. Gowtham Kumar Advocate- Respondent No. 1 Mr. K. Manivannan, Advocate for Respondent No. 1 Mr. N.P. Vijay Kumar, Mr. R. Pradeep, Mr. Navaneethakrishanan, Advocates for R-2 JUDGEMENT VIRTUAL MODE JUSTICE M. VENUGOPAL, MEMBER (JUDICIAL) INTRODUCTION: The Appellant/Shareholder/Erstwhile Director/Promoter of the Corporate Debtor has preferred the instant Company Appeal (AT)(CH)(Ins) Nop.29/2022 as an Aggrieved Person being dissatisfied with the impugned order dated 04.01.2022 in (IB) No.237/9//HDB/2019 passed by the Adjudicating Authority (N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or LLC, while shareholders own corporations. Whereas, Governmental agencies are not owned by individuals, they are owned by and operated on behalf of the public and they are governed by written laws, which have been enacted in the constitution or in legislation. In other words, the level of perfection practised in Union Public Service Commission or Staff Selectin Commission in the matter of appointments cannot be expected in a private sector. 42.Therefore, having heard the learned counsel for both parties, considering the submissions made by the learned counsels, on perusal of the record, written submissions and the case law, we are of the view that the present application deserves to be admitted under Section 9 of the I B Code, 2016. Accordingly, the application filed by the Operational Creditor is admitted and the Corporate Debtor is put under CIRP. 43. Shri P.M.V.Subba Rao has filed Memo dated 09.12.2021 along with Form-2, for his appointment as IRP in this matter. and admitted the Application under Section 9 of the I B Code by declaring moratorium for the purposes referred to in Section 14 of the Code and issued necessary directions. APPELLANT S SUBMISSION ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that the said complaint is sub-judice before the Hon ble 6th Additional Distt. Magistrate, Hyderabad, in view of view of the protest petition filed by the Corporate Debtor against the Closure of the First Information Report on account of inability to decide complex matter of cybercrime . 9. The Learned Counsel for the Appellant submits that the pendency of the Protest Petition involving determination of Forgery and Fraud would constitute a pending legal dispute, under the tenets of the I B Code, 2016 and, therefore, the Application filed by the 1st Respondent/Operational Creditor warrants dismissal, in respect of a Disputed Debt . 10. The Learned Counsel for the Appellant comes out with a plea that the Annual Report of the Corporate Debtor being a Public Document clearly shows that there are no employees in the Corporate Debtor and further that the Corporate Debtor had consistently not treated anyone, as its Employee . 11. The other argument advanced on behalf of the Appellant is that there is no Board Resolution which was produced by the 1st Respondent/applicant which actually permits the Appellant, to have agreed to allot shares for ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed. 21. The Learned Counsel for the Appellant submits that the Adjudicating Authority in a summary proceeding cannot determine Damages and further that the alleged Debt is clearly barred by the plea of Limitation. Moreover, there cannot be any extension by an Acknowledgement , as per Section 19 of the Limitation Act, 1963 which is not satisfied, in the present case on hand. 22. The Learned Counsel for the Appellant submits that the concept of continuing cause of action as per Section 23 of the Limitation Act 1963, is inapplicable to the proceedings under Section 7 and 9 of the Code . 23. The Learned Counsel for the Appellant contends that the underlined Debt alleged is not a Debt or even a claim as per Section 3(6) read with Section 3(11) of the I B Code, 2016. 24. The Learned Counsel for the Appellant submits that the Adjudicating Authority had incorrectly considered the Emails relied on by the 1st Respondent/applicant as computer typed letters. Further that the said Emails are disputed seriously by the Corporate Debtor and the same could not have been considered, without following due procedure , established under Section 65(b) of the Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2010 to 2015. 32. It is represented on behalf of the 1st Respondent that the Company had addressed a letter to the 1st Respondent, that you would be entitled to a total remuneration of ₹ 5,28,24,000/- from 01.04.2010 till 31.03.2015 , which would be paid, through Shares of Company and that the 1st Respondent/Applicant would be paid a monthly salary of ₹ 6 lakhs w.e.f. 01.04.2015. 33. It is the version of the 1st Respondent that inspite of the letters and correspondences, the Company had merely promised on another Email dated 10.08.2016 that the 1st Respondent would be entitled to ₹ 7,50,00,000/- as sweat equity shares in the form of remuneration and a detailed letter was also issued by the company on 28.08.2016, with a break up of amounts due to the 1st Respondent and the method of payment which runs as under:- 1. You will receive a compensation of ₹ 7,50,00,000/- (Rupees Seven Crores and Fifty Lakhs) for the work rendered from 01.04.2010 to 31.07.2016 through shares of Teja Cement Limited @ ₹ 10/- (Rupees Ten) per share Calculation sheets for arriving at the above amount is annexed to this letter. 2.The shares will be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the work done between 2010 and 2016. 37. The Learned Counsel for the 1st Respondent submits that after numerous endeavours, to recover the amount due and payable , the 1st Respondent/Applicant, had issued a Demand Notice on 05.12.2018, as per Section 8 of the Code and that the Appellant in its Interim Reply dated 13.12.2018 had denied the claims made in the Demand Notice in a vague manner and alleged that the supporting documents annexed to the Demand Notice are also false and fabricated. Moreover, the Appellant without issuing any detailed reply, through the company filed a complaint/FIR No.4/2018, on 20.12.2018, before the Crime Investigative Department of the Telangana State Police and in October, 2019, the Criminal Case was closed, on the ground that allegations against the 1st Respondent were not proved and undetectable , based on the Final Report filed by the CID Police Station, Hyderabad. 38. The Learned Counsel for the 1st Respondent proceeds to point out that when there was no reply for well over three months, the 1st Respondent filed an Application in CP(IB) NO.237/9/HDB/2019 (under Section 9 of the Code, before the Adjudicating Authority , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d contribution made by the 1st Respondent, since April, 2010 and assured to compensate the 1st Respondent. 43. The contention of the Learned Counsel for the 1st Respondent is that the failure of the Company to pay its dues is a Continuing Breach and hence it is a continuous cause of action as per Section 22 of the Limitation Act 1963 . In fact, the payments were not made despite several Emails and correspondences between the year 2015 and 2017 and the Company violated its obligations continuously. 44. The Learned Counsel for the 1st Respondent points out that on 27.09.2016 there is an admission of outstanding dues by the Appellant and as such the right to sue for the sum in question, accrued to and in favour of the 1st Respondent and that the aspect of issuance of the Demand Notice on 05.12.2018 and filing of CP(IB) No.237/9/HDB/2019 is well within three years period of limitation. In fact, the last written acknowledgement is on 27.09.2016 and from that date, the period of limitation is to be taken into account, as per Section 18 of the Limitation Act, 1963. 45. The Learned Counsel for the 1st Respondent contends that the Letter of the Company dated 25.07.2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Email IDs of the Appellant and his daughter with Appellant s daughter and had asked the change the password in 2013. Even the wedding invite of the Appellant s daughter was served vide [email protected]. Also, the payment for Design and Hosting of the Company s website www.tejacement.com in 2017 was made from the Company and the same is evident from the Balance Sheet filed (as on 31.03.2014). 51. The Learned Counsel for the 1st Respondent contends that in the Closure Report there were clear findings that the email ID [email protected] was in Appellant s control and that all the e-mails were addressed by the Appellant . 52. The Learned Counsel for the 1st Respondent submits that the findings of the Adjudicating Authority (National Company Law Tribunal, Hyderabad Bench) were based on the final report filed by the CID which was filed after a detailed investigation and enquiry . 53. The Learned Counsel for the 1st Respondent projects and plea that as on date of the Demand Notice on 05.12.2018, there were no Criminal Cases filed and that the Appellant filed a Criminal Complaint on 21.12.2018, which could not be taken advantage based on the plea tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Section 8(1) of the Code. Under Section 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in sub-section (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which is pre-existing i.e. before such notice or invoice was received by the corporate debtor. The moment there is existence of such a dispute, the operational creditor gets out of the clutches of the Code. 6. Therefore, it is clear that if there is a debt and there is a default which in this case has not been disputed by Tayo Rolls Limited -( Corporate Debtor ), the application being complete, the Adjudicating Authority should have entertained the application, instead of raising a technical ground that it was filed on behalf of 284 workmen. 58. The Learned Counsel for the 1st Respondent seeks in aid of the Judgment of this Tribunal dated 03.05.2018 in Kriti Paul Gera v. Devang H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have jurisdiction to enquire into questions of fraud, they would not have jurisdiction to adjudicate upon disputes such as those arising under MMDR Act, 1957 and the rules issued thereunder, especially when eh disputes revolve around decision of statutory or quasi-judicial authorities, which can be corrected only by way of judicial review of administrative action. Hence, the High Court was justified in entertaining the writ petition and we see no reason to interfere with the decision of the High Court. Therefore, the appeals are dismissed. There will be no order as to costs. ASSESSMENT 60. Before the Adjudicating Authority , the 1st Respondent/Applicant/Operational Creditor in the Application (under Form 5) Part IV, Particulars of Operational Debt at Sr. No.1 and 2 had observed the following:- 1. TOTAL AMOUNT OF DEBT, DETAILS OF TRANSACTIONS ON ACCOUNT OF WHICH DEBT FELL DUE, AND THE DATE FROM WHICH SUCH DEBT FELL DUE ₹ 7,50,00,000/-, which is the amount pending pursuant to the Joint settlement memo entered into between the parties. 2. AMOUNT CLAIMED TO BE IN DEF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en and none of the other Directors / Promoters/Authorised representatives of the Company had operated the said e.mail account. 64. The stand of the Appellant is that the Companies letter heads and other documents relating and / or belonging to the Company for the purpose of communicating with the officials and others on the instructions of the Appellant were given to the First Respondent / Applicant. In fact, the First Respondent / Applicant is to utilise those letter heads and other documents only upon specific instructions of the Appellant and on some occasions, the First Respondent / Applicant had accompanied the Appellant while meeting numerous officials for the purpose of setting of the factory. 65. The Corporate Debtor took a stand before the Adjudicating Authority in its reply to CP (IB) No.237/9/HDB/2019 that the First Respondent/Applicant had agreed to invest and made an investment sum of ₹ 20,00,000/- into the Corporate Debtor/Company. It is the plea of the Corporate Debtor that after transferring the amount to the Company, the first Respondent/Applicant had requested the Appellant to return the money, since he required the same for urgent financial exigenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re granted. 70. The Corporate Debtor in its reply before the Adjudicating Authority had mentioned that the First Respondent/Applicant had created false letters which were annexed to the notice and also annexed to the instant application by falsifying the signature of the Appellant and by misusing the letter heads of the Company which were kept in the custody of the First Respondent/Applicant also that the e.mails relied on by the First Respondent/Applicant were also sent by him by creating and sending e.mails from [email protected] to his e.mail account, both of which were created by the First Respondent/Applicant himself and that he himself was in control of the logging credential of the said e.mail accounts . 71. The Corporate Debtor had taken a stand before the Adjudicating Authority in its Reply that the E-mails and letters were created by the 1st Respondent/Applicant alleging that they were sent by the Appellant for the purpose of threatening and blackmailing the company and its Directors for declining the 1st Respondent/Applicant illegal demand for money and directorship in the company. As a matter of fact, the 1st Respondent/Applicant had not referred to any of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof, since the ingredients of Section 19 of the Limitation Act, 1963 were admittedly not satisfied based on the facts of the present case. 76. The 1st Respondent/Applicant s side comes out with a plea that the claim made by virtue of the Demand Notice dated 05.12.2018 is a valid one and that the amount claimed to be in default is ₹ 7,50,00,000/- and further that the debt fell due on 01.04.2010 i.e. the date of commencement of services for the Company and thereafter, on a monthly basis when the remuneration was payable on 25.07.2011, 29.01.2015, 11.08.2016, 28.08.2016, 27.09.2016 when the amounts were admitted by the Company. In fact, the 1st Respondent/Applicant/Operational Creditor refers to the letters dated 29.01.2015, 26.09.2016, 28.08.2016, 10.08.2016 and 17.10.2016 addressed to the Corporate Debtor and emphatically takes a stand that the Company had admitted through its letters dated 28.08.2016 and 17.10.2016 in respect of the outstanding sum due to the Applicant i.e. a sum of ₹ 7.5 crore for the work rendered from 01.04.2010 to 31.07.2016 and out of ₹ 7,50,00,000/-, shares for ₹ 3,75,00,000/- would be issued in the financial year 2016-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reported in AIR (1997) Guj 24 at Pages 29, 30. An unqualified acknowledgement is sufficient to furnish a cause of action for maintaining the suit. 79. An acknowledgement may be an express or an implied one. An acknowledgement is to relate to a current subsisting liability, although the specific character or exact nature of the said liability, may not be indicated in words as per decision State of Rajasthan V. Bundi Electric Supply Co Ltd, Bundi AIR 1971 Raj Page 24 at Spl Page 30. Once an admission is made in regard to the subsisting sum, it is a clear case of an acknowledgement of liability , in the considered opinion of this Tribunal . 80. Continuing violation of contract In respect of continuing breach of contract/in the event of a continuing Tort, a new/fresh period of limitation that starts to run at every moment of the time during which, the breach of the Tort, as the case may be continues. Also that, in respect of breach of Contract as well as to the suits based on Torts Section 23 of the Limitation Act, 1963 applies and the term injury in Section 23 of the Act includes a legal injury as per decision Govind Narayan Kakade V. Ranganath Gopa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant s documents and to put it precisely, there was a promise to pay for the services and quantum of compensation was also fixed and initially the promise made was in the nature of money and later, altered to that of shares and subsequently partly by shares and partly by money and they were not fulfilled. From these ground realities, the amount being quantified for the services rendered, there is clear cut creditor-debtor relationship between the parties. Therefore, the Application in CP(IB) NO.237/9/HDB/2019 filed by the 1st Respondent/Applicant before the Adjudicating Authority (National Company Law Tribunal, Hyderabad Bench) is maintainable per se in the eye of Law, as held by this Tribunal. 85. It cannot be gain said that in the impugned order in CP(IB)No.237/9/HDB/2019 dated 04.01.2022 the Corporate Debtor in Annexure A-6 had mentioned the following:- Mr Nanda Gopal has degree in Mechanical Engineering from University of California, San Deigo, USA and Law degree from Osmania University, Hyderabad, India. After returning to India, he started and headed companies in the fields of Computer Aided Designing, IT Enabled Services, Satellite Communications, and Publishi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Sheet as on 31.03.2014 filed in this regard (vide Volume IV of Appellant s Paper Book in the instant appeal page No.601) is another factor which goes against the Appellant s version, as opinion by this Tribunal. 90. It cannot be brushed aside that the Final Report of Closure filed by the Police in respect of Forgery was submitted after a due enquiry and investigation process and in fact, the Adjudicating Authority had negatived the plea of Forgery projected on the side of the Appellant , solely resting upon the Final Report furnished by the Police. Therefore, it cannot be said by any stretch of imagination the aspect of fraud /forgery cannot be gone into by the Adjudicating Authority in a summary proceeding under the I B Code, 2016. Looking at from that perspective, the contra pleas taken on behalf of the Appellant with reference to Section 73 coupled with Section 45 of the Indian Evidence Act, 1872 are not acceded to by this Tribunal . 91. It must be borne in mind that on the date of issuance of Demand Notice dated 05.12.2018 no criminal case filed and it is to be remembered that on 21.12.2018 a criminal complaint was filed, which cannot lead one to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is existence of a dispute between the parties or the record of pendency of a suit or arbitration proceedings filed before the receipt of demand notice in respect of the unpaid Operational Debt , pertaining to the dispute. 95. An Adjudicating Authority is to scrutinise the application in ascertaining as to whether the dispute raises a plausible contention which needs more investigation and the same is not a mere assertion of fact or a weak plea. In fact, an Adjudicating Authority is not to examine the pros and con of the merits of the matter in detail. 96. In Law, if the Adjudicating Authority is satisfied that the dispute is a plausible one and projected by a party as envisaged in Section 8(2)(a), an application is liable to be rejected by the Adjudicating Authority (filed by the Operational Creditor ), praying for the initiation of Corporate Insolvency Resolution Process . 97. In the present case, although there is no formal appointment order in respect of the First Respondent/Applicant, yet the fact of the matter is that the Appellant had written to the First Respondent/Applicant appointing him to work for the Company and fixed his remuneration. The F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority, wherein the Corporate Debtor was admitted into CIRP (Corporate Insolvency Resolution Process). 3. It is submitted that the first Respondent herein preferred an Application under Section 9 of the I B Code, 2016, alleging that he was an employee of the Corporate Debtor and claiming that a default has occurred in payment of a sum of ₹ 7,50,00,000/- (Seven Crore Fifty Lakh Rupees) to the first Respondent here in, and also claimed that the Corporate Debtor failed to allot sweat equity shares. 4. It is submitted that the Corporate Debtor was incorporated in the year 2007 for the purpose of setting up a cement factory in Yerraguntla Mandal, YSR Kadapa District, Andhra Pradesh and is a closely held Company and the shares of the Corporate Debtor are only subscribed by family and Close Friends of the Directors/Promoters of the Corporate Debtor. 5. It is submitted that the first Respondent herein approached the Appellant stating that he is keen and interested to invest in the Cement factory being established by the Corporate Debtor. As the first Respondent had shown interest in making investments into the Corporate Debtor and he was known to the Appellant through fami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegations and claims being made by the first Respondent. 10. It is submitted that the first Respondent had obtained a domain name tejacement.com without the knowledge and authorisation of the Corporate Debtor or its Director and also created its e-mail address purportedly to be that of the Appellant Mr. M. Srinivasula Reddy for the purpose of addressing e-mails to himself from the said e-mail account and claiming that the same have been sent by the Appellant for the purpose of establishing his illegal and falsified claims. 11. It is submitted that the Corporate Debtor or any of the Directors or having any knowledge of the domain name tejacement.com and the same was created by the first Respondent without any authorisation. In this regard, the Appellant filed a Criminal complaint against the first Respondent for all the Criminal Acts and the same was registered by the CID Police vide FIR No. 04/2018 dated 21.12.2018. The said FIR was closed by filing a Final Report against which a Protest Petition is filed and pending before the Sixth Additional Chief Metropolitan Magistrate at Hyderabad in Criminal MP No. 162 of 2021. 12. It is submitted that the debt alleged to be due an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y cannot decide the issues pertaining to non-allotment of shares which is clearly barred under Section 430 of the Companies Act, 2013. 17. The Learned Counsel further submitted that the Adjudicating Authority cannot determine the substantial questions of fraud and forgery in a summary proceeding thereby grossly exceeded its jurisdiction. The Hon ble NCLT failed to take note that the underlying alleged debt is not a debt or even a claim as per Section 3 (6) read with Section 3 (11) of the Code. The Hon ble NCLT failed to take note that whether failure to allot shares in respect of salary alleged to be payable can be treated as an Operational Debt under Section 5 (21) of the Code. It is submitted that Section 58 and 59 of the Companies Act, 2013 are exclusive remedies in respect to non-allotment of shares and whether such non-allotment can be a considered as a default. 18. The Learned Senior Counsel also raised various grounds in support of the Appeal and also relied upon various Judgments in support of his case. 19. The Learned Senior Counsel submitted that the Adjudicating Authority failed to consider the facts and law as stated above in entertaining and admitting the Appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponse to the limitation it is submitted that the Corporate Debtor on 25.07.2011 conveyed their decision to offer this Respondent a position on the Board of the Company within a monthly salary of ₹ 5,00,000/- and an amount of ₹ 80,00,000/- would be paid through shares for the period from April 2010 to July 2011. Further, the Corporate Debtor vide its letter dated 29.01.2015 stated that this Respondent would be entitled to a total remuneration of ₹ 5,28,24,000/- from 01.04.2010 till 31.03.2015 and the said amount would be paid through shares of the Company and also stated that he would be paid a monthly salary of ₹ 6,00,000/- w.e.f. 01.04.2015. Further, the Corporate Debtor vide e-mail dated 10.08.2016 conveyed that this Respondent would be entitled to ₹ 7.5 Crore as sweat equity shares in the form of remuneration. It is submitted that the failure to pay the dues is a continuing breach and as such is a case of continuing cause of action within Section 22 of limitation Act, 1963. 25. It is submitted that with regard to the contention that the communications/documents are forged is concerned, this Respondent establishes that the transaction and communic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pensation for services rendered and not for any demand for repayment of share application money. The learned Counsel also relied upon the Judgments in support of his case. He prays the Bench to dismiss the Appeal as devoid of any merits. Analysis/Appraisal 28. After analysing the pleadings, documents and citations relied upon by the respective parties the only issue felt for consideration and need to be addressed is. Whether the application filed by the first Respondent herein is within the period of limitation or barred by limitation? Now I deal with the issue: 29. The Adjudicating Authority as at point no.1 framed issue whether the application is barred by law of limitation. In answer to the said point the Adjudicating Authority was of the view that the Appellant categorically admitted while letters dated 28.08.2016 and 17.10.2016, the outstanding dues of the first Respondent namely an amount of ₹ 7.5 Crores towards salary and shares worth ₹ 3.75 lakhs and observed that the Application having been filed on 29.03.2019 is well within the period of limitation as provided under Article 137 of the Limitation Act and further observed that the claim as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 application dated 23.03.2019 at part 4 in column 2 under the category date on which the default occurred , the Respondent specifically mentioned the date as 25.07.2011 and admittedly the date of default as per the first Respondent is 25.07.2011. Taking into account the applicability of Limitation Act, 1963, according to Article 137 of the Limitation Act, 1963, the period of limitation for the purpose of filing applications is three years. (v) In this regard, the Hon ble Supreme Court in the matter of Vashdeo R. Bhojwani vs. Abhyudaya Co-operative Bank Ltd. Ors. Held at paragraph 3 as under: 3. Having heard Learned Counsel for both parties, we are of the view that this is a case covered by our recent judgment in B.K. Educational Services Pvt. Ltd. v. Parag Gupta and Associates, MANU/SC/1160/ 2018: 2018 (14) Scale 482, para 27 of which reads as follows: 27. It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the code from the inception of the Code, Article 137 of the Limitation Act gets attracted. The right to sue , therefore, accrues when a default occurs. If the default has occurred over three years prior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period of limitation i.e. three years from 25.07.2011. Admittedly there is no acknowledgment prior to expiry of three years period for the purpose of counting the limitation from 25.07.2011. Further, even in the demand notice issued by the first Respondent dated 05.12.2018 its states the date of debt felt due was shown as 01.04.2010 i.e. the commencement of service for the Company and remuneration payable on 25.07.2011, 29.1.2015 and subsequent letters dated 11.08.2016, 28.08.2016 and 27.09.2016. From the aforesaid dates it is clear that there is no communication/ acknowledgment prior to 29.01.2015. Therefore, it is unequivocal that the application filed by the first Respondent herein before the Adjudicating Authority clearly barred by limitation. On this basis itself the application filed by the first Respondent herein before the Adjudicating Authority invoking its jurisdiction under Section 9 is not maintainable and the same is liable to set aside. (ix) It is to state that the Hon ble Supreme Court in Ramesh Kymal vs. Siemens Gamesa Renewable Power Pvt. Ltd. reported in (2021) 3 SCC 224 paragraph 9,10,11 held that a Operational Creditor is bound by the date of default men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ixty days notice period from the letter of resignation submitted by the appellant concluded. This attempt to set back the date of default to either 21.01.2020 or 23.03.2020 is plainly untenable for the reason that it is contrary to the disclosure made by the appellant in the demand notice which has been issued in pursuance of the provisions of Section 8(1) and Section 9 of the IBC. The demand notice triggers further actions which are adopted towards the initiation of the insolvency resolution process. Findings 30. In view of the aforesaid Judgement of the Hon ble Supreme Court the date of default which is crystallised i.e. 25.07.2011 in the application, the period of limitation triggers from that date and three years as specified under Article 137 of the limitation Act,1963 is made applicable as per the decision of the Hon ble Supreme Court in re- Vashdeo R. Bhojwani vs. Abhyudaya Co-operative Bank Ltd. Ors. , and the three year period expires on 24.07.2014 and the first Respondent failed to produce any acknowledgment for the purpose of fresh period of limitation which shall be computed from the time when the acknowledgment was so signed. 31. In the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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