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Judgment
O R D E R
03.05.2023: This Appeal has been filed against the order dated 02.03.2023 by which an Application filed by the Appellant under Section 9 of IBC, 2016, has been dismissed on the ground of limitation.
Shorn of unnecessary details, the date of default mentioned by the Appellant in the Application filed under Section 9 is 13.12.2013 whereas the Application under Section 9 was filed on 10.02.2020. The Appellant has relied on various e-mails exchanged between the parties for the purpose of acknowledgment on the part of the Respondent of the due debt.
Counsel for the Appellant has referred to the email dated 10.05.2014, 24.10.2016, 10.01.2017 and 11.02.2017. If the period of three years is counted from 13.12.2013, then it will come to an end on 13.12.2016. As per Section 18 of Limitation Act, 1963 (in short ‘Act’), fresh period of limitation shall be computed from the time of acknowledgment. Section 18 of Limitation Act is reproduced as under:
Section 18 in The Limitation Act, 1963
18. Effect of acknowledgment in writing—
(1)Where, before the expiration of the prescribed period for a suit of application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
(2)Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received. Explanation.—For the purposes of this section,—
(a)an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or right;
(b)the word “signed” means signed either personally or by an agent duly authorised in this behalf; and
(c)an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.
The first e-mail dated 10.05.2014 comes between 13.12.2013 to 13.01.2016 extend the period of limitation upto 10.05.2017. The next date of e-mail dated 24.10.2016 comes in between 10.05.2014 and 10.05.2017 extend the period of limitation upto 24.10.2019. The next e-mail which is stated to be acknowledged on 10.01.2017 comes in between 24.10.2016 and 24.10.2019 further extend the period of limitation upto 10.01.2020. The next e-mail dated 11.02.2017, comes between 10.01.2017 to 10.01.2020 extend the period of limitation upto 11.02.2020 whereas the petition under section 9 was filed 10.02.2020. However, it has been found as fact by the learned Tribunal that last e-mail dated 11.02.2017 is not an e-mail regarding to acknowledgment of debt rather it is only an information.
“I am in hospital for a brief treatment for 4 days, and will be able to respond on Monday”.
Counsel for the Appellant has argued vehemently that the said e-mail has to be taken as acknowledgment of debt, but the said e-mail is of no use to the Appellant because Respondent has not acknowledged any debt in the said e-mail and thus limitation would not extend.
As a result, we find no error in the impugned order for interference and the appeal is thus dismissed.