M/s. Shree Gayatri Trust vs M/s. Handicrafts Development Corporation of Kerala Ltd

3. SUBMISSIONS MADE BY THE PETITIONER

j)

It is further stated that the demand notice issued in the present case is not in the proper form and does not contain the relevant particulars. The application under Section 9 is also not in the proper form. It is neither properly verified nor authenticated. Additionally, it is not accompanied by the documents required under Sub-section (3) of Section 9. The application is also not accompanied by a certificate from the financial institutions as required by Section 9(3)(c) of the IBC, 2016. Therefore, the application under Section 9 is incomplete and is liable to be rejected.

a)

The decree in question was passed on 06.12.2013. Insofar as civil decrees are concerned, the limitation period for execution under Article 136 of the Limitation Act, 1963, is twelve (12) years from the date the decree becomes enforceable. It is, therefore, legally untenable to suggest that any claim arising from the decree is time-barred. The Petitioner's recourse to the Insolvency and Bankruptcy Code, 2016 ("IBC") does not extinguish or curtail those 12 years. In Dena Bank v. C. Shivakumar Reddy in Civil Appeal No. 1650 of 2020, the Hon'ble Supreme Court reiterated that a decree may form the basis for the initiation of proceedings under the IBC, subject to proof of default within the meaning of the Code.

b)

The Petitioner states that the existence of a decree establishes the liability conclusively, unless set aside or stayed by a competent court. There is no legal impediment to proceeding under the IBC to realize such a liability, particularly when the default remains unsatisfied. The Petitioner's right under the IBC is not foreclosed simply because civil execution remedies exist. Nor does the availability of an execution mechanism under the Code of Civil Procedure, 1908 ("CPC") preclude the Petitioner from seeking a remedy under Section 9 of the IBC. It is well settled that the IBC is a separate, time-bound mechanism for resolution or liquidation in cases of default, and does not merely serve as a substitute for the execution of decrees.

c)

The Petitioner further states that there is no order of stay, injunction, or any other restraining order from the Hon'ble High Court in WP(C) No. 4953/2017 regarding the execution or enforcement of the decree. The mere pendency of proceedings, unaccompanied by any stay on the decree, does not amount to a live dispute. In Mobilox Innovations Private Limited v. Kirusa Software Private Limited, it was held that the dispute must be "substantial" and cannot be "spurious, hypothetical, or illusory." In this case, the Respondent's liability has been adjudicated and remains undisputed, as there is no interim relief modifying or negating the operative decree.

d)

The Petitioner reiterates that the decree dated 06.12.2013 has attained finality in the sense that it is enforceable. The existence of an unresolved writ petition without any stay cannot, in law, be equated with a pre-existing dispute under Section 8(2)(a) of the IBC. The Supreme Court in Innovative Industries Ltd. v. ICICI Bank (2018) 1 SCC 407 clarified that once a debt becomes due and payable, the corporate debtor must demonstrate a bona fide dispute that truly exists before the receipt of the demand notice. The petition under the IBC cannot be rejected merely because the corporate debtor has initiated or maintains legal proceedings in another forum. The burden is on the Respondent to show that a genuine dispute regarding liability existed before the receipt of the Section 8 notice. In this case, the Respondent has not shown any such genuine dispute, aside from referencing a Writ Petition with no operative stay.

e)

The Petitioner categorically denies that any pre-existing dispute, as understood in law, exists between the parties. The decree for mesne profits granted by the competent civil court is conclusive on the question of liability for the period in dispute. The Respondent's continued failure to pay the decretal amount or secure a stay order from the appellate court confirms that there is no live controversy requiring adjudication. In K. Kishan v. Vijay Nirman Company Pvt. Ltd., the Hon'ble Supreme Court emphasized that a dispute must exist before the issuance of the Section 8 notice and must be raised in a manner recognized under the Code. A post-decree writ petition that merely challenges the quantum or seeks to set aside the decree, but remains un-stayed, does not oust the jurisdiction of this Tribunal to admit the petition if the default is otherwise established.

f)

It is stated that the Respondent's attempt to characterize the subject matter as purely a landlord-tenant dispute, outside the purview of operational debt, is misplaced. The Petitioner has proceeded on the clear position that the liability crystallized by a court decree arises from a commercial arrangement, where the premises were used by the Corporate Debtor in furtherance of its business. The claim, therefore, falls within the broader framework of "operational debt," as recognized by certain judicial authorities, where lease or license dues for commercial purposes have been deemed operational. Regardless, the question of classification under operational debt is secondary to the fact that the Respondent, being a judgment debtor, owes a definite amount, which remains unpaid without any legitimate dispute.

g)

The Petitioner refutes the Respondent's reliance on "pre-existing dispute" jurisprudence to claim non-maintainability. The ratio of Mobilox does not aid the Respondent in this case because the dispute was conclusively decided at the civil court stage. Had there been a bona fide dispute, it would have been decided against the Petitioner. Instead, the Petitioner succeeded, obtained a decree, and there is no injunction preventing its enforcement. The entire Writ Petition concerns the quantum of mesne profits and associated relief, but that, by itself, lacking any interim order, cannot constitute a dispute that invalidates this present action under the IBC.

h)

The Petitioner reiterates that the alleged "dispute" invoked by the Respondent is nothing more than an unsubstantiated challenge raised in a parallel forum without any interim relief. The existence of such a proceeding cannot, in itself, eclipse the finality of the decree or the Petitioner's entitlement under the IBC. The Petitioner also points out that the continued default in payment of the decretal sum ensures that the "default" under Section 3(12) of the IBC remains operative. The Respondent's failure or refusal to satisfy the decree is, therefore, a clear instance of a corporate debtor defaulting on an ascertained liability.

i)

The Petitioner asserts that there is no bar to the Petitioner electing to enforce its rights either through execution under the CPC or by invoking the IBC, as the IBC provides a distinct mechanism aimed at insolvency resolution or liquidation in cases of unpaid debts. The Respondent's repeated references to "execution proceedings" do not affect the maintainability of an insolvency petition, especially where the statutory prerequisites of Section 9 of the IBC are fully met.

6. ANALYSIS AND FINDINGS: -

1.

Diligent RPS is calculated by including share application money, premium, and other

2.

Deferred Tax has not been considered as the Company is not certain in generating sufficient profit in future.

3. Contingent Liabilities:

4. Claims against the Company not acknowledged as debt.

a)

M/s. Gayathri Trust Mumbai, the landlord of the building where Kairali Mumbai is situated had filed a suit No. 208/251 of 2000 in the court of small causes Mumbai for the recovery of the rent arrear at the rate of ₹ 6, 18,880/- per month from October 98 to June 2000 and for the recovery of mesne Profit at the rate of ₹ 6, 18,880/- per month from July 2000 onwards. There is no rent arrears as per the rent agreement. The Hon'ble Judge has ordered that the defendants (Corporation) shall pay mesne profit to the plaintiffs in respect of the suit premises for the period from the date of suit till the plaintiffs received possession of the suit premises and to vacate the premises within four months. Aggrieved by the above order the Corporation has filed an appeal with the appellate bench of this Court, and the Hon'ble Court was pleased to stay the order of the lower Court. The case is still pending. Stock at Kairali Mumbai has been removed by the landlord and shifted to some unknown place. Corporation has filed a theft case against the landlord which is pending. The corporation had a showroom at Mumbai taken on lease(1969) which the lesser got evicted by court order (2004) and filed a suit no: 208/251 of 2000 for mesne profit for ₹ 3,81,87,329/-along with interest @ 0% p.a. is the honorable court of small causes, Mumbai. The case is still pending. They have filed a spl. Darkhast No. 52 of 2015 at the Hon.court of Civil Judge, Thane. The Court issued a warrant for execution on 19.07.2015. They have executed the decree by the Thane Court and attached the property of ₹ 3.08 lakhs worth items. On 27.01.2023, the officials from Thane court along with Advocate came to our showroom at Navimumbai and issued notice of attachment. Meanwhile case has been transferred to Civil court, Belapur, since Thane court does not have jurisdiction for the place occupied by Kerala House, Navimumbai.

b)

The claim raised by the New Delhi Municipal Committee for payment of house tax for the building occupied by the Corporation at Delhi during the previous years were set aside by Hon'ble High Court of New Delhi. The total tax claim up to 31.03.2002 amount to ₹ 2.82 lakhs (approximately). Although New Delhi Municipal Committee preferred an appeal before the Hon'ble Supreme Court, in view of the stand taken by the Corporation and the verdict of Hon'ble High Court of New Delhi, no provision has been made in the accounts in respect of this amount.

For HANDICRAFTS, DEVELOPMENT CORPORATION OF KERALA LTD.

1.

Appeal pending against Provident fund commissioner order for payment against 7/2003/09/2003/11/2003 to 8/2004 for Rs. 5, 05, 671/-

2.

Case filed by Retna Jewellers in arbitration case for ₹. 32.60 lakhs, towards the supply of goods to HDCK Ltd is pending.

3.

Sri. A. Vijayakumaran Nair, Driver had filed a case in the High Court at Ernakulam for his retirement benefits of ₹. 1, 34, 880/- the case is still pending.

4.

R/s Mahalakshmi Handicraft, Bangalore has filed a suit for the realization of money for the brass items claimed to have been filed during the year 2003-04 to various units of HDCK amounting to ₹. 5, 20, 404/-. As per the records of HDCK the amount payable is ₹. 1, 60, 056/-. On 09.12.15 the court has decreed the suit for ₹. 4, 37, 016/- with interest @ 6% p.a from the date of suit till the date of realization. As per court order, we have given 50% of ant. i.e. ₹. 3, 25, 228/- as court deposit and balance 50% i.e. 3, 25, 228/- as court guarantee. The case is still pending.

5.

Lesser of Kairali Ernakulam has claimed rent enhancement and filed a petition. The Rent Control Court allowed the petition and filed the enhanced rent @ ₹. 189630/-p.m. An appeal has been filed but dismissed. Meanwhile Corporation vacated the showroom.

6.

The EPP commissioner has levied ₹. 28, 04, 742 towards interest and damages for belated payment of EPP from October 2000 to January 2018.

7.

Appeal pending before Hon'ble Highcourt against TQ damages levied by EPP Commissioner ₹. 10, 23, 160 and appeal pending before Industrial Tribunal cum labour court against 148 penal charges levied ₹. 2118071/-

8.

As per agreement dated 20.03.1999 executed between Govt. of Kerala and Handicrafts Development Corporation of Kerala Ltd, the management of SMSN Institute and its business devolved on the corporation and the staff of the institute became the staff of the corporation. Accordingly the corporation became solely responsible for the assets and liabilities, Profits and Losses arising on the transaction made for and on behalf of the institute from 01.03.1999. The corporation holds the assets and liabilities of the SMSN Institute as agents of the trustees viz: Govt of Kerala. The depreciation for the assets and agency fees are charged in Profit and Loss account and treated as payable to Govt of Kerala.

9.

Estimated amount of contracts remaining to be executed on capital account and not provided for ₹. 53.62 lakhs.

10.

The quantitative particulars of purchases made, opening stock and closing stock with break up of goods traded by the company could not be disclosed as required in Schedule III of the Companies Act, 2013 in view of the innumerable varieties of articles handled. Request sent to Central Government for getting exemption.

11.

Expenditure in foreign currency.-Nil.

12.

The company has incurred a net loss of ₹. 4, 33, 835.30 hundreds during the year ended 31st March 2023 and, as on that date, the Company's current liabilities exceeded its current assets by ₹. 52, 40, 514.25 hundreds, the management is on the opinion that the company would be in a position to continue as a going concern.

13.

The Company has taken working capital loan from Indian Overseas Bank ₹50 lakhs on the security of Fixed Deposit from Bank balance of HKCPDC Account.

14.

Previous Years figures have been regrouped and recast, wherever necessary, to suit the current year's lay out and disclosure.

For : Thiruvananthapuram Date: 19.08.2023 for and on behalf of the Board of directors

- The provisions of Section 18 of the Limitation Act were held applicable to IBC proceedings by a two-Judge Bench of this Court in Sesh Nath Singh v Baidyabati Sheoraphuli Coop. Bank Ltd. (2021) ibclaw.in 49 SC. While the observation in Sesh Nath Singh (supra) was obiter dicta, the matter has been set at rest in a decision of a three-Judge Bench of this Court in Laxmi Pat Surana v Union Bank of India and Anr. (2021) ibclaw.in 53 SC.(p9-10) - An acknowledgement in a balance sheet without a qualification can be relied upon for the purpose of the proceedings under the IBC. This principle also emerges from the decision in Asset Reconstruction Company (India) Ltd. v. Bishal Jaiswal & Anr., (2021) ibclaw.in 55 SC, which noted the decisions in Sesh Nath Singh (supra) and Laxmi Pat Surana (supra).(p11). - The decisions in Sesh Nath Singh (supra), Laxmi Pat Surana (supra) and Asset Reconstruction Company (supra) have subsequently been followed in numerous decisions of this Court delivered by two-Judge Benches, namely:

(i) Dena Bank v. C. Shivakumar Reddy & Anr. (2021) ibclaw.in 69 SC;

(ii) State Bank of India v Vibha Agro Tech Limited (2021) ibclaw.in 225 SC;

(iii) Devas Multimedia Private Ltd. v Antrix Corporation Ltd. and Anr. (2022) ibclaw.in 04 SC;

(iv) SVG Fashions Pvt. Ltd. v Ritu Murli Manohar Goyal and Anr. (2022) ibclaw.in 17 SC. And

(v) Rajendra Narottamdas Sheth & Anr. v. Chandra Prakash Jain & Anr. (2021) ibclaw.in 155 SC (a more recent decision of a three-Judge Bench)(p12) - In view of the above decisions, the position of law has been set at rest. Neither the NCLT nor the NCLAT had the benefit of adjudicating upon the factual controversy in the context of the decisions of this Court. The principles which emerge are that:

(i) The provisions of Section 18 of the Limitation Act are not alien to and are applicable to proceedings under the IBC; and

22.

We have already seen from the judgment in V.R. Kalliyanikutty (supra), that the expression “due” will depend upon the context in which that word appears. It will be seen from a reading of the definition of “debt” in Section 3(11) of the Code, that “debt” is said to mean a liability or obligation in respect of a claim which is “due” from any person, and includes a financial debt and an operational debt. “Financial debt” is defined in Section 5(8) as follows:

“5.

Definitions.—In this Part, unless the context otherwise requires,— xxx xxx xxx (8) “financial debt” means a debt along with interest, if any, which is disbursed against the consideration for the time value of money and includes—

(a)

money borrowed against the payment of interest;

(b)

any amount raised by acceptance under any acceptance credit facility or its de-materialised equivalent;

(c)

any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

(d)

the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed;

(e)

receivables sold or discounted other than any receivables sold on non-recourse basis;

(f any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing;

Explanation.—For the purposes of this sub- clause,—

(i)

any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing; and

(ii)

the expressions, “allottee” and “real estate project” shall have the meanings respectively assigned to them in clauses (d) and (zn) of Section 2 of the Real Estate (Regulation and Development) Act, 2016 (16 of 2016);

(g)

any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account;

any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution;

(i)

the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause;”

Operational debt is defined in Section 5(21) as follows:

“5.

Definitions.—In this Part, unless the context otherwise requires,— xxx xxx xxx (21) “operational debt” means a claim in respect of the provision of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority;” The definition of “default” in Section 3(12) uses the expression “due and payable” followed by the expression “and is not paid by the debtor or the corporate debtor……”. “Due and payable” in Section 3(12), therefore, only refers to the whole or part of a debt, which when referring to the date on which it becomes “due and payable”, is not in fact paid by the corporate debtor. The context of this provision is therefore actual non-payment by the corporate debtor when a debt has become due and payable.

23.

Section 7 applies to a financial creditor who may file an application for initiating a corporate insolvency resolution process against a corporate debtor when a “default” has occurred. The same expression is used when it comes to an operational creditor, who may on the occurrence of a “default” under Section 8, deliver a demand notice as may be prescribed. What throws considerable light on the expression “default” is Section 8(2)(a) which reads as follows:

“8. Insolvency resolution by operational creditor. —

xxx xxx xxx

(2)

The corporate debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor—

(a)

existence of a dispute, if any, or record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute;” It will be seen from a reading of Section 8(2)(a) that the corporate debtor shall, within a period of 10 days of the receipt of the demand notice, bring to the notice of the operational creditor the existence of a “dispute”. We have seen that “dispute” as defined in Section 5(6) includes a suit or arbitration proceeding relating to certain matters. Again, under Section 8(2)(a), the corporate debtor may, in the alternative, disclose the pendency of a suit or arbitration proceedings filed before the receipt of the demand notice. It is clear therefore, that at least in the case of an operational creditor, “default” must be non-payment of amounts that have become due and payable in law. The “dispute” or pendency of a suit or arbitration proceedings would necessarily bring in the Limitation Act, for if a suit or arbitration proceeding is time-barred, it would be liable to be dismissed. This again is an important pointer to the fact that when the expression “due” and “due and payable” occur in Sections 3(11) and 3(12) of the Code, they refer to a “default” which is non-payment of a debt that is due in law, i.e., that such debt is not barred by the law of limitation. It is well settled that where the same word occurs in a similar context, the draftsman of the statute intends that the word bears the same meaning throughout the statute (see Bhogilal Chunilal Pandya v. State of Bombay, 1959 Supp. (1) SCR 310 at 313-314). It is thus clear that the expression “default” bears the same meaning in Sections 7 and 8 of the Code, making it clear that the corporate insolvency resolution process against a corporate debtor can only be initiated either by a financial or operational creditor in relation to debts which have not become time-barred.

24.

Strong reliance was placed by Shri Dholakia on France B. Martins v. Mafalda Maria Teresa Rodrigues, (1999) 6 SCC 627, by which Section 24A was inserted in the Consumer Protection Act, 1986 by a 1993 amendment, making the provisions of the Limitation Act applicable to the Consumer Protection Act. In turning down the plea that Section 24A would cover the period from 1986 to 1993, this Court held that the legislature in its wisdom thought it appropriate not to prescribe a period of limitation for proceedings under the Act as the object of that Act was for the better protection of the interest of consumers. The Court, therefore, held that the addition of Section 24A in the Act shows that initially, the legislature did not intend to prescribe any period of limitation for filing complaints under the Act as it would stultify the beneficent social legislation contained therein. This case is again wholly distinguishable in that the Court found that the Consumer Protection Act is a beneficial social legislation, whose object was not to apply the Limitation Act when it was first enacted. On the contrary, in the present case, we find that the object of the Code was subserved by applying Section 433 of the Companies Act from the very inception of the Code. Also, the Insolvency Law Committee Report of March, 2018 makes it clear that the object of the Code from the very beginning was not to allow dead or stale claims to be resuscitated. In this view of the matter, we are afraid that this judgment also would have no bearing.

25.

The chart handed up by Shri Dholakia, in which he wished to demonstrate that various tribunals under different Acts either apply or do not apply the Limitation Act, again leads us nowhere. Depending upon the intention of the legislature in each of the enactments mentioned in the chart, either the legislature thought it fit to apply the Limitation Act, or it did not, depending upon the subject matter of the Act in question. We have held that at least insofar as the Code is concerned, the intention of the legislature, from the very beginning, was to apply the Limitation Act to the NCLT and the NCLAT while deciding applications filed under Sections 7 and 9 of the Code and appeals therefrom. Section 433 of the Companies Act, which applies to the Tribunal and the Appellate Tribunal, expressly applies the Limitation Act to the Appellate Tribunal, the NCLAT, as well. Also, the argument that the NCLAT is an appellate tribunal which is common to three statutes, under one of which, viz., the Competition Act, no period of limitation has been prescribed, would not lead to any anomalous situation. When the Appellate Tribunal, i.e., the NCLAT decides an appeal under the Competition Act, since an appeal is a continuation of the application filed before the Competition Commission (See Lachmeshwar Prasad Shukul and Ors. v. Keshwar Lal Chaudhuri and Ors., AIR 1941 FC 5), the NCLAT will decide the appeal on the footing that the Limitation Act did not apply to an application made before the Competition Commission. On the other hand, insofar as applications are filed under Section 7 or 9 of the Code, or petitions or applications filed under the Companies Act, the NCLAT will decide such petitions/applications on the footing that the Limitation Act will apply to such petitions/applications. Merely because appeals under different statutes are sent to one appellate tribunal would make no difference to the position in law. Undoubtedly, if three separate appellate tribunals had been constituted under the three enactments in question, this argument would have no legs to stand on. Merely because, from the point of view of convenience, appeals are filed before one appellate forum would not mean that any anomalous situation would arise as each appeal would be decided keeping in mind the provisions of the particular Act in question. Therefore, this argument also must be rejected.

26.

Shri Dholakia argued that the Code being complete in itself, an intruder such as the Limitation Act must be shut out also by application of Section 238 of the Code which provides that, “notwithstanding anything inconsistent therewith contained in any other law for the time being in force”, the provisions of the Code would override such laws. In fact, Section 60(6) of the Code specifically states as follows:

“60. Adjudicating Authority for corporate persons.—

xxx xxx xxx

(6)

Notwithstanding anything contained in the Limitation Act, 1963 (36 of 1963) or in any other law for the time being in force, in computing the period of limitation specified for any suit or application by or against a corporate debtor for which an order of moratorium has been made under this Part, the period during which such moratorium is in place shall be excluded.” This provision would have been wholly unnecessary if the Limitation Act was otherwise excluded either by reason of the Code being complete in itself or by virtue of Section 238 of the Code. Both, Section 433 of the Companies Act as well as Section 238A of the Code, apply the provisions of the Limitation Act “as far as may be”. Obviously, therefore, where periods of limitation have been laid down in the Code, these periods will apply notwithstanding anything to the contrary contained in the Limitation Act. From this, it does not follow that the baby must be thrown out with the bathwater. This argument, therefore, must also be rejected.

27.

It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. “The right to sue”, therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application.

3)

An independent proceeding was then begun by Respondent No.1 on 03.10.2017 being in the form of a Section 7 application filed under the Insolvency and Bankruptcy Code in order to recover the original debt together with interest which now amounted to about 124 Crores of rupees. In the Form-I that has statutorily to be annexed to the Section 7 application in Column II which was the date on which default occurred, the date of the NPA i.e. 21.07.2011 was filled up. The NCLT applied Article 62 of the Limitation Act which reads as follows:-

Description of suit	Period of limitation	Time from which period begins to run
To enforce payment of money secured by a mortgage or otherwise charged upon immovable property	Twelve years	When the money sued for becomes due

conclusion that since the limitation period was 12 years from the date on which the money suit has become due, the aforesaid claim was filed within limitation and hence admitted the Section 7 application. The NCLAT vide the impugned judgment held, following its earlier judgments, that the time of limitation would begin running for the purposes of limitation only on and from 01.12.2016 which is the date on which the Insolvency and Bankruptcy Code was brought into force. Consequently, it dismissed the appeal.

4)

Mr. Aditya Parolia, learned counsel appearing on behalf of the appellant has argued that Article 137 being a residuary article would apply on the facts of this case, and as right to sue accrued only on and from 21.07.2011, three years having elapsed since then in 2014, the Section 7 application filed in 2017 is clearly out of time. He has also referred to our judgment in B.K. Educational Services Private Limited vs. Parag Gupta and Associates, 2018 SCC OnLine SC 1921 in order to buttress his argument that it is Article 137 of the Limitation Act which will apply to the facts of this case.

18.

Thereafter, we have also gone through the decision of the NCLT, Principal Bench, New Delhi in M/s Ananya Infraventures Private Limited Vs. M/s Tulsiani Constructions & Developers Private Limited (CP(IB)-286(PB)/2019) wherein the Tribunal held that: -

xx.

We further here appreciate the observation of the Hon’ble Supreme Court made in the case of Radha Exports (India) (P) Ltd. v. K.P. Jayaram (2020) 10 SCC 538 that it is for the applicant invoking the Corporate Insolvency Resolution Process, to prima facie show the existence in his favor, of a legally recoverable debt. In other words, the applicant had to show that the debt is not barred by limitation. In the present case, we note that the Applicant has miserably failed to prove that Application has been filed within the prescribed period of limitation.

19.

Ld. Counsel for the Petitioner has relied upon the judgment of Dena Bank (now Bank of Baroda) Vs. C. Shivakumar Reddy and Anr. (Civil Appeal No.1650 of 2020). But the facts of that case are different footings and not applicable to the facts and circumstances of the present case.

20.

So, this is not a suit. The Petition for Insolvency under Section 9 cannot be treated as an execution or a suit, and as such, it would not be governed by Article 136 of the Limitation Act 1963, rather it would fall within the ambit of Article 137 of the Limitation Act,1963 as no specific period of limitation has been prescribed under IBC, 2016. We find merit in the arguments advanced on behalf of the respondents.

21.

Further, pendency of Writ Petition before the Hon'ble High Court after dismissal of the first appeal against the decree dated 06.12.2013 would come within the ambit of pre-existing dispute. On that count, also, the Petition merits dismissal.

22.

The Petitioner has filed this Company Petition just for the recovery of its dues, and as such, such practice is liable to be reprimanded. If we allow the platform of IBC, 2016, for the recovery of dues, that would be against the basic objectives of the Code. Considering the foregoing findings, the Petition lacks merit, and CP(IBC)/54/KOB/2024 is dismissed.

23.

The file will be consigned to record storage (current).

24.

Let a copy of the order be served to the parties.