9911796707
TMI Blog2024 (2) TMI 1472X X X X Extracts X X X X X X X X Extracts X X X X ..... 01 of 2020 1. This Appeal is directed against the order dated 23.09.2020 passed by the National Company Law Tribunal, Mumbai Bench - IV, in C.P. (IB) No. 476/MB.IV/2018, by which an application filed by Respondent under Section 9 of the Insolvency and Bankruptcy Code, 2016, (for short `the Code') against the Appellant for the Resolution of an amount of Rs. 52,94,356/- (principal) and Rs. 28,43,287.77/- as (interest) has been admitted. 2. Counsel for the Appellant has submitted that the application filed under Section 9 is `barred by Limitation'. He has referred to the application filed by the Respondent (CD) on the prescribed form in which the following averments have been made: "Date from which debt fell due: Sr. No. Date of Invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is to be counted from 10.11.2015 of a period of three years then it would come to an end on 10.11.2018 whereas the Petition had been filed on 13.12.2018. It is also submitted that the Respondent filed a Complaint under the Negotiable Instrument Act, 1881, (`the Act of 1881') before the Court of Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai registered as CC No. 1815/SS/2016 which has been dismissed inter alia on the ground that the alleged cheque was found to be forged and fabricated. 5. On the other hand, Counsel for the Respondent has submitted that the Appellant has not taken the defence of limitation either in the Reply to the Demand Notice or in the Reply to the application filed under Section 9, therefore, he is not per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is a well settled that the plea of Limitation can still be setup in Appeal in view of Section 3 of the Act which provides that `subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence'. 10. In view of the provision mentioned hereinabove of the Act, the plea of Limitation can be setup in defence even in the Appeal if it is not setup before the Tribunal. 11. Be that as it may, since the question of Limitation is a mixed question of law and fact, therefore, the Appellant was required to setup his defence. In this case, the Respondent has submitted that had the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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