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TMI Blog2024 (7) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... fication dated 28.01.2016 which came prior to the filing of petition under Section 433 and 434 of the Act, 1956 on 19.02.2016, it was required that in order to take any legal action against the Respondent, the consent of the central government was necessary. However, despite the order dated 29.03.2016 in which the liberty was granted to the Appellant to take recourse in accordance with law, no such application was filed by the Appellant to the Central Government for the purpose of taking its consent to pursue its remedy or recovery of the debt against the Respondent. The Respondent has solely relied upon a decision of the Hon ble Supreme Court in the case of Duncans Industries Ltd. in which the Appellant and the Respondent were not a party, therefore, it has no bearing at all. There is hardly any error in the impugned order for the purpose of interference because the Adjudicating Authority has also held that there was ample time with the Appellant to seek prior consent of the Central Government for the purpose of taking action against the Respondent in accordance with law. There are no error in the impugned order which requires any interference - the present appeal is held to be wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made on diverse dates to Demdima Tea Estate/ Garden, which, admittedly, is owned by the company. At the time of hearing of the matter, learned advocate representing the company refers to a notification issued by the Central Government on 28th January, 2016, in exercise of powers conferred by sub-section (1) of section 16E of the Tea Act, 1953 whereby the Central Government has authorised the Tea Board to take immediate steps to take over the management or the control of Demdima Tea Estate and six other tea gardens as per the provisions of Chapter IIIA of the Tea Act, 1953. He submits that in view of the embargo under subsection (1)(c) of section 16G of the Tea Act, 1953, no proceeding for winding up of the company, being the owner of the tea garden, shall lie before this Court except with the consent of the Central Government. Upon perusing the relevant provision of law, as cited by the learned advocate representing the company, and upon taking into consideration the notification dated 28th January, 2016, it is clear that a proceeding for winding up of the company cannot lie before this Court in the facts and circumstances of the instant case except with the consent of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings were continued till 04.10.2019 when the decision of the Hon ble Supreme Court came in the case of Duncans Industries Limited Vs. A.J. Agrochem, (2019) 4 SCC 17. 10. On the other hand, the case set up by the Corporate Debtor is that the first supply was made on 31.01.2012 and the last supply was made on 15.05.2012. It is also the case of the Respondent that the last payment was made on 05.08.2014. The petition under Section 9, having been filed in January, 2020, is clearly barred by limitation and the limitation would not stop running on account of filing of CP No. 161 of 2016 before the High Court under Section 433 and 434 of the Act, 1956. It is also the case of the Respondent that the decision in the case of Duncans Industries Limited (Supra) has nothing to do with the extension of limitation in view of Section 9 of the Limitation Act, 1963. 11. Counsel for the Appellant has submitted that the last date of supply of goods to the Respondent was 15.05.2012, the last on account payment made by the Respondent was on 05.08.2014 and the confirmation of accounts was done on 09.03.2015. The period of limitation is three years in terms of Article 137 of the Act, 1963. Winding u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t neither the consent was taken nor the application under Section 9 was filed though the IBC came into being from 2016 itself. It is submitted that the Appellant cannot take advantage of its own wrong for not taking the consent of the Government for the purpose of winding up petition filed under Section 433 and 434 of the Act, 1956 or for the purpose of filing an application under Section 9 of the Code. It is also submitted that the decision in the case of Duncans Industries Limited (Supra) does not extend the time limit for filing the petition under Section 9 of the Code because it was not an intraparty proceeding. 14. We have heard Counsel for the parties and perused the record. 15. From the resume of the facts narrated hereinabove, it is clear that the application under Section 9 was filed in the year 2020 as it was registered as CP (IB) No. 166/KB/2020. The petition was filed for resolution of Rs. 7,24,530/- with interest @ 14%. Notice under Section 8 was issued on 03.12.2019. According to the Appellant, the last supply of goods was made by the Operational Creditor on 15.05.2012, the last on account payment was made by the Corporate Debtor on 05.08.2014 and the CD confirmed the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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