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TMI Blog2022 (8) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... y be noted that although in above compliance affidavit the last cheque provided by the respondent to the applicant got bounced/dishonoured on 18.09.2017 for an amount of Rs. 69892 has been mentioned but there is no cogent evidence provided which shows bouncing of any cheque, instead bouncing of ECS Instrument as stated in the said affidavit. As per the mentioned date of default i.e. 15.09.2015, the limitation period ends up in the month of September, 2018 but the present petition is re-filed on 30.09.2021 vide Diary No. 01099. Also the date of default as per the record available with information utility in respect of debt is 30.06.2016 and the date of last repayment is 19.08.2015 for an amount of Rs. 69,892.00/-. Even if the last date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kur , Member (J) 1. The present petition has been filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'Code') read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 by Intec Capital Limited (hereinafter referred to as 'Petitioner/Financial Creditor') to initiate the Corporate Insolvency Resolution Process ('CIRP') against B.R. Solvex Private Limited (hereinafter referred to as 'Respondent/Corporate Debtor'). The petition is signed by Mr. Chandan, Authorized Signatory and the affidavit verifying the contents of the application is on page 34-36 of the petition. 2. The master data of the corporate debtor is stated to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nued to default. 4. It is stated in Part-IV of Form No. 1 that the total amount claimed to be in default is Rs. 1,63,54,666/- and date of default is 15.09.2015. Copy of loan agreement is attached as Annexure 10 of the petition. 5. The notice of this petition was issued on 01.12.2021. However, despite the service through email as well as through substituted has been made in two daily newspapers (Chandigarh Edition) namely Financial Express (English) and Jansatta (Hindi), none appeared on behalf of respondent, therefore, respondent is set ex-parte on 07.03.2022. 6. We have heard the learned counsels for the petitioner and have also perused the record carefully. 7. Section 7(3) (5)(a)(b) of the Code is as follows:- (3) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing further, the first and foremost issue for consideration is whether the present application is filed within limitation. It can be seen from the records that the date of default mentioned in Form 1 Part IV is 15.09.2015 and this petition is re-filed vide Diary No. 01099 dated 30.09.2021. Pursuant to this query, it is explained by the learned counsel for the petitioner there is also subsequent default, when the cheque was bounced. But this fact is not clearly mentioned in Part IV. The learned counsel for the petitioner was directed to file compliance affidavit. To the above, compliance affidavit has been filed vide Diary No. 01099/3 dated 30.11.2021, whereby it has been stated that the last cheque provided by the respondent-corporate debto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with information utility in respect of debt is 30.06.2016 and the date of last repayment is 19.08.2015 for an amount of Rs. 69,892.00/-. Even if the last date of default is taken as 30.06.2016, then also it is badly time barred. The above-said arbitration award for recovery of Rs. 23,66,868/- has been made on 25.02.2016 which again emphasise that even after passing the award no payment was made thus, the instant petition is beyond the limitation period. 10. In view of the above, the present petition is time barred. Section 3 of Limitation Act, 1963 is imperative and casts a duty upon the Court to dismiss an application barred by time although limitation has not been set up as a defence. As held in Ashis Kumar Hazra V. Rubi Park Co-operat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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