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Judgment
03.04.2025: Respondent has been served through publication also but still has not appeared. Hence, proceeded ex-parte.
With the assistance of ld. Counsel for Appellant we take up this appeal for final hearing.
This appeal is filed against an impugned order dated 16.07.2024 passed by ld. NCLT, Indore, Special Bench in CP(IB)/63/MP/2022 whereby ld. NCLT has dismissed Section 7 petition filed by the Appellant herein on the ground the application was time barred. It is the submission of the ld. Counsel for Appellant a decree was passed on 10.05.2018 by the ld. DRT for an amount of Rs. 21,32,34,009/- in favour of the Appellant herein and against the Respondent and the period of limitation for Section 7 application would have come to an end on 09.05.2021. The Appellant, admittedly, filed petition u/s 7 on 12.09.2022.
It is the submission of ld. Counsel for the Appellant vide judgement dated 10.01.2022 passed in suo moto Writ Petition(Civil) no. 3/2020 titled as in RE-Cognizance for extension of limitation, the Hon’ble Supreme Court had directed the period from 15.03.2020 till 28.02.2022 would stand excluded for the purposes of calculating the period of limitation.
It is the submission of the ld. Counsel for Appellant the three years’ period would count to 1095 days and that till March 15.03.2020, only the period of 675 days had expired and thus on 1.3.2022, 420 days were still left to file the appeal and within the said period, i.e. on 12.9.22, the application was filed u/s 7 before the ld. NCLT, hence, per judgement stated above the petition u/s 7 was within limitation. This issue has also been dealt with by this Tribunal in Mrs. Rita Kedia Vs. Ashika Global Securities Private Limited & Ors. in CA(AT)(Ins.) No. 1536/23 wherein the following was held:-
“13.The Learned Counsel for the Appellant had also raised defence regarding limitation. The application under Section 7 of the IBC, 2016 was filed on 30.05.2022. The Appellant itself as Director of the Corporate Debtor had acknowledged the debt in the ledger accounts of Financial Year 2016-17, 2017- 18 and 2018-19 through confirmation of accounts, including the last dated 01.04.2019 appearing at page 104 of the Appeal Paper Book. The three year period, since the acknowledgement, expired on 31.03.2022. However, as per the direction of the Hon'ble Supreme Court in Suo Moto Writ Petition No. 3 of 2020 decided on 10.01.2022, the period from 15.03.2020 till 28.02.2022 is to be excluded for counting of limitation under any law. Excluding the said period, the present petition under Section 7 was filed within the limitation period by the Financial Creditor.
14.Considering the facts of this case, we find that the Ld. NCLT has rightly admitted the Corporate Debtor in CIRP on an application under Section 7 of IBC, 2016 filed by the Financial Creditor. We do not find any reason to interfere in the impugned order of Ld. NCLT. The appeal, devoid of merit, is dismissed. All related IAs, if pending, are closed. No order as to costs”.
Considering the above, the impugned order dated 16.07.2024 needs to be set aside since it has not calculated the period of limitation per above judgement of the Hon’ble Supreme Court.
In view of the above, the appeal is allowed. Impugned order is set aside. The application u/s 7 of IBC be now taken up by ld. NCLT and be proceeded with as per law. All pending applications are disposed of.