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TMI Blog2024 (2) TMI 1472X X X X Extracts X X X X X X X X Extracts X X X X ..... is no dispute that a Petition under Section 7 or 9 has to be filed within a period of three years in terms of Article 137 of the Act and the period of three years is to be counted from the date when the default had occurred. It is also not in dispute that the Appellant had not taken the defence either in their Reply dated 27.11.2018 filed to the Demand Notice dated 06.11.2018 or in the Reply filed to the application under Section 9. However, 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 dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Particulars of Invoice Due Date 1. 22/07/2014 2105/RJ02941 02/08/2014 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 permitted to raise this objection in Appeal. 6. He has further submitted that the Respondent was appointed as a Del Credere Agent of Reliance Industries Limited. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 question of Limitation been setup by the Appellant in defence before the Tribunal, he would have led evidence to prove that the period of Limitation had not expired in view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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