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Judgment
O R D E R
(Per: Justice Rakesh Kumar Jain)
20.07.2022 This Appeal has been filed against the order dated 26.09.2019 by which an application filed by the Operational Creditor under Section 9 of the Insolvency & Bankruptcy Code, 2019 (‘Code’ in short) to recover an amount of Rs.43,96,593/- has been admitted.
Earlier, the order dated 26.09.2019 was challenged by the Corporate Debtor by way of CA (AT) (Ins) No. 1340 of 2019 which was allowed by this Appellate Tribunal on the ground that the application filed by the Operational Creditor was barred by limitation because the default has occurred on 07.10.2013 and the application was filed on 20.04.2018.
However, the Operational Creditor challenged the order dated 22.05.2020, passed by this Appellate Tribunal, in Civil Appeal No. 4228 of 2020 in which it was urged that the Corporate Debtor had acknowledged the debt by issuing six cheques on 28.09.2015 alongwith letter of the same day and thus, the application filed under Section 9 was within limitation.
It is also submitted that genuineness of the letter dated 28.09.2015 was also challenged by the Respondent before the Apex Court in the said appeal. The Hon’ble Supreme Court vide its order dated 29.03.2022 allowed the Appeal and set aside the order dated 22.05.2020 passed by this Appellate Tribunal, the relevant part of the order of the Hon’ble Supreme Court is reproduced as under:-
“7.But we find from the order of NCLAT that there was discussion at all about the letter dated 28.09.2015. According to Operational Creditor, the Six Cheques in question were handed over alongwith the letter dated 28.09.2015. The cheque numbers and the bank on which the cheques were drawn, given in the letter dated 28.09.2015 tallied with the particulars of those six cheques allegedly lost by the Corporate Debtor in March, 2017. Though the first respondent herein clamed in his affidavit in reply that the Corporate Debtor had issued stop payment instructions, he conceded that the acknowledgment issued by the banker contained the date 01.01.2018. The following extract from the affidavit in reply/objections of the Director of the Corporate Debtor makes an interesting reading:
“….Hereto annexed and marked collectively as Annexure-C are copies of the intimation issued by the banker of the Corporate Debtor duly recording the instruction of stop payment qua the cheques in question taking record that the cheques had been lost. It is submitted that the banker of the corporate debtor had issued such notices acknowledging stop payment instruction on account of loss of the cheques on 04.03.2017, however inadvertently due to the error in the computers of the banker, the date on the top right shows as 01.01.2018. the Corporate Debtor in the process of obtaining appropriate letter from the banker of the Corporate Debtor to the effect that the error in the date has occurred due to some problem in the computers of the banker, and the corporate debtor craves leave to produce copy of the same as and when referred to and relied upon and available with the corporate debtor from the banker.”
After setting aside the order dated 22.05.2020, the Hon’ble Supreme Court remanded back the case to this Appellate Tribunal with the following observations.
“Accordingly, the appeal is allowed, the impugned order of NCLAT is set aside and the matter remanded back to NCLAT for a fresh consideration in the light of the observations and the principles of law indicated above. There will be no order as to costs.”
This appeal is, thus, placed before us for adjudication.
Counsel for the Appellant has submitted that the letter dated 28.09.2015 is not genuine.
On the other hand, Counsel for the Respondent has submitted that this issue was raised by the Respondent before the Apex Court as well and the same was not accepted, therefore, the order of this Appellate Tribunal was set aside. The observations made by the Apex Court in para 8 of its order is also reproduced for ready reference.
“8.Unfortunately, NCLAT completely overlooked the pleadings revolving around the letter dated 28.09.2015 and the six cheques. The failure of the NCLAT as the first appellate authority to look into a very vital aspect such as this, vitiates its order, especially when NCLT has recorded a specific finding of fact on this.”
We have heard Counsel for the parties and perused the record.
The appeal was earlier allowed by this Appellate Tribunal on the ground that the default had occurred on 07.10.2013 and the application was filed on 20.04.2018, which was apparently beyond a period of three years but once the debt has been acknowledged vide letter dated 28.09.2015, the limitation would again start running from the date of acknowledgment for three years and in view thereof, the application under Section 9 filed on 20.04.2018 was within limitation. The Appellant cannot be allowed to raise the issue about the genuineness letter dated 28.09.2015 as the same issue raised before the Hon’ble Supreme Court and remained unsuccessful. No other point has been argued.
In view of the aforesaid facts and circumstances, we do not find any merit in this appeal and the same is hereby dismissed.