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Judgment
ORDER
13.01.2022: Heard Learned Counsel for the Appellant.
This Appeal has been filed against the Order dated 07th February, 2020 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi, Bench-V) by which the Petition i.e. (IB) 2977(ND)/2019 filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred as ‘Code’) by the Appellant has been rejected on the ground that that the same is barred by limitation.
Learned Counsel for the Appellant-Operational Creditor filed the Petition under Section 9 of the Code claiming for payment of unpaid amount of money which was due on account of several invoices submitted by the Operational Creditor.
Adjudicating Authority had held that from the date when the cause of action arose i.e. 24th July, 2016, the Application has not been filed within three years and the same is barred by time. The Application under Section 9 of the Code was filed on 14th November, 2019.
Learned Counsel for the Appellant submits that Reply which was given to Demand Notice under Section 8 of the Code shows acknowledgment of debt and Appellant was entitled for benefit of Section 18 of the Limitation Act, 1963 for extension of limitation and the view taken by the Adjudicating Authority is not correct.
We have considered the submissions and perused the record. There is no dispute with regard to the fact that last payment was made to the Appellant on 15th March, 2016 which has been noted in Paragraph 2 of the Judgment. The Adjudicating Authority in Paragraph 13 returned following findings:
“13.So under such circumstances, we are unable to accept the contention of the Operational Creditor that limitation shall run from the date, when the right to sue accrued and end on the date when demand notice was sent/delivered, rather we are of the considered view that Operational Creditor must have filed an application within three years from the date, when the right to sue accrued i.e. on 24.07.2016 till the end of limitation period of three years i.e. 23.07.2019, whereas the present application is filed on 14.11.2019 and therefore, it is filed much after the period prescribed under Article 137 of the Limitation Act, 1963 i.e. after more than three years.”
We now come to the submissions of Learned Counsel for the Appellant for benefit of Section 18 of the Limitation Act, 1963 as claimed by him. Paragraph 5 of the Reply dated 1st August, 2019 which was given by the Corporate Debtor to the Demand Notice dated 19.09.2019 stated as follows:
“…
5.That further as per the annexures to your Notice dated 19.07.2019, your client’s company has claimed that the payments to 15 invoices including RA No. 12 & 13 have not been made by our Client, however it is pertinent to mention here that the payments to all the invoice including No. 12 & 13 (which was the last submitted bill as per the work done) post verification were duly made by our Client, making your claim/demand infructuous and lacks merit. The payment of the same is also accepted by your client. ……………”
We fail to see that paragraph 5 of the Reply to Demand Notice how can give any extension of limitation to the Appellant. Paragraph 5 of the Reply only states that with regard to the payment of 15 invoices including RA No. 12 & 13 the payment to all invoices have been post verification duly made by the Respondent’s client. It was said that all payments have been made, there is no acknowledgment within the meaning of Section 18 of the Limitation Act, 1963 in paragraph 5 above by which the Appellant can claim extension of any limitation.
The Application having been filed after three years from the date of cause of action arose, we are of the view that no error has been committed by the Adjudicating Authority in rejecting the Application.
There is no merit in the Appeal. The Appeal is dismissed.