AI Structured Summary
Not yet generated for this judgment
Judgment
I.A. No. 1730/2025
This is an application praying for condonation of 85 days delay in refiling of the appeal.
In the additional affidavit, counsel for the appellant has referred to various medical documents of the appellant supporting the submission that appellant was ill and was under treatment.
Learned counsel for the respondent refuting the submissions contends that all documents were prior to passing of the impugned order.
We have looked into the documents and find that some of medical document produced were also for period subsequent to passing of the impugned order, we thus are of the view that the delay in re-filing of the appeal is sufficiently explained.
Refiling delay condoned.
Comp. App. (AT) (Ins.) No. 482/2025
Heard counsel for the appellant.
This appeal has been filed against an order dated 09.10.2024 passed by the adjudicating authority (National Company Law Tribunal, Indore Bench, Court No. I), by which Section 9 application filed by the appellant has been rejected as barred by time.
Appellant was engaged in the business of undertaking road construction contract. Anil Bhatia is Authorised Representative of the applicant. The Section 9 application was filed on basis of a work order dated 11.09.2011. It was submitted that there were outstanding dues against the corporate debtor.
The reply was filed. Adjudicating authority heard the parties and by impugned order rejected the application as barred by time.
In paragraph 8 of the order, adjudicating authority has made following observations:
“8.It is observed that in Part IV of the application, the date on which debt fell due is stated to be 30.08.2014 and at the same time the date of default is stated to be 09.11.2021. In support of the date of default so stated, two letters dated 07.09.2021 and 04.11.2021, which were by the applicant to the respondent demanding the outstanding payment within a period of fifteen days and seven days respectively, have been placed on record. The learned counsel for the respondent objected to the date of default so stated as 09.11.2021, and has drawn our attention to the fact that the RA Bills were raised between the period of 2011 to 2014 and the applicant himself has mentioned the date or which debt had fallen due is 30.08.2014, and thereby the counsel for respondent has taken a plea that the application having been filed much beyond the time period of three years from 30.08.2014 is barred by limitation. We have considered the submission so made by the counsel and find that the applicant has not placed on record any document which would otherwise lead to any extension in limitation period. Moreover, the cash receipts and bank statements placed by the IA 110 of 2024 were not taken on record and were rejected for reasons as stated herein above in Paragraph 7. Accordingly, this is a case where present application is barred by limitation and is not maintainable on this ground itself.”
Learned counsel for the appellant challenging the order submits that there were medical conditions and he has also relied on an affidavit of one Anil Sharma which is filed along with the rejoinder affidavit at Page 96 that respondents have promised to make the payment.
We have considered the submissions of the counsel for the appellant and perused the records.
In Part IV of the application, the date of default was mentioned as 30.08.2014 and Section 9 application filed in the year 2022. The work order which was issued to the appellant was 2011 & 2014 as claimed and when the date of default was mentioned on 30.08.2024, the application filed in the year 2022 is clearly barred by time. The RA Bills were also raised for the period 2011-14.
Learned counsel for the appellant has relied on the affidavit of Anil Sharma which affidavit is as follows:
“I, Anil Sharma, aged about 6l- years, presently residing at 13, NEW Janakpuri, Sindhi Colony Laskar Gwalior 474001, do hereby solemnly affirm and state as under:
1.That I was employed with Dilip Buildcon Ltd. as Project Manager during the period 2011 to June 2017.
2.That during my employment, M/s Shyamji Construction Company (Proprietor: Mr. Anil Bhatia) executed various works for Dilip Buildcon Ltd. under my supervision at site.
3.That all work orders during that time were issued at site by me or under my instructions. Bills were received at site, checked by the Quantity Engineer, and thereafter sent for internal processing.
4.That after completion of work in 2014, the payment for certain bills remained pending.
5.That between 2014 and June 2017, I personally had several discussions with Mr. Anil Bhatia regarding the pending payments, wherein I informed him that the payment was under process but not yet released.
6.That even after leaving the company in June 2017, I remained in contact with Mr. Anil Bhatia. Based on my previous knowledge of the project and my interactions with certain persons in Dilip Buildcon, I understand that the said payment had still not been made to Shyamji Construction Company as of the year 2021.
I state that the above facts are true and correct to the best of my knowledge and belief.
Place: Pichhore, Shivpuri, M.P. Date:26-08-2025 DEPONENT (Signature of Anil Sharma)
VERIFICATION I, Anil Sharma, do hereby verify that the contents of the above affidavit are true and correct to my personal knowledge and belief, and nothing material has been concealed therein.
Place: Pichhore Shivpuri M.P. Date:26-08-2025 DEPONENT”
The said affidavit is an affidavit of one Mr. Anil Sharma who claimed to be employed with Dilip Buildcon Ltd. as Project Manager during 2011-17. The said affidavit which was by an ex-employee of corporate debtor cannot be a reason for extending the limitation which is claimed by the appellant and the said employee according to his own case was employed till June 2017, whereas the Section 9 application was filed. There is no reason in the affidavit to extend the limitation for filing Section 9 application.
We are of the view that adjudicating authority did not commit any error in rejecting the application as barred by time. We, however, observe that it shall be open for the appellant to take such remedy in law as per the contract between the parties.
Appeal is dismissed.