Universal Speciality Chemicals Pvt. Ltd vs Safex Chemicals (India) Ltd

Abni Ranjan Kumar Sinha, J

We have heard the Ld. Counsel appearing for the Applicant. He fairly submitted that invoices of dated 06.07.2015 thereafter the Corporate Debtor has acknowledged his debt in his ledger account on which the applicant annexed at Page 77. He further submitted that it is also fact that the present application has been filed on 15.06.2015. He further submitted thereafter several correspondences were made through mail, which the applicant has annexed from page nos. 80 to 83 and all these correspondences are in between 15.06.2015 to 30.06.2016. He further submitted thereafter, he sent a legal notice on 24.01.2017 demanding the amount and he received a reply on 04.02.2017 and by placing reliance on this reply, Ld. Counsel appearing for the petitioner submitted that since on 04.02.2017, the respondent refused to pay the amount, therefore, the right to sue accrues for the first time on 04.02.2017 and from that period the application filed by the applicant is within time.

In support of his contentions, Ld. Counsel appearing for the applicant placed reliance upon certain decisions, which are reported in 2019 (1) SCC Page 633, Civil Appeal No. 7673 of 2019 decided on 30.09.2019 and AIR 2018 SCC 3240. By placing reliance on these decisions, Ld. Counsel for the applicant submitted that in view of the decision in Daya Singh and Others Vs. Gurudev Singh and Others 2020 right to sue accrues arise when there is infringement of rise and in the case the right of sue accrues when the respondent refused to pay the amount.

Now in the light of submissions raised on behalf of the applicant, we have gone through the averments as well as the documents filed on behalf of the applicant, and the decisions on which the applicant has placed reliance and from the careful consideration of the same, we find that the invoices are dated 06.07.2015 and at Page 22 part 4 column 2 of the applications, the applicant mentioned that the date of default is 08.08.2015 pursuant to the issuance of invoice No. 255 and thereafter on 04.02.2017 when the Corporate Debtor for the first time disputed its liability to pay the said amount. Now in the light of the aforesaid facts, we would like to refer Article 137 of the Limitation Act and same is quoted below.

Description of suit

Period of limitation

Time from which period begins to run

Any other application for which no period of limitation is provided elsewhere in this Division.

Three years

When the right to apply accrues

Mere plain reading of the Article 137 of the Limitation Act shows that any other application for which no period of limitation is provided elsewhere in this division the application must have been filed within three years, when the right to apply accrues. Here in this case, the right to apply accrues on 08.08.2015, when the applicant has raised the invoices and we further find, the applicant has enclosed the ledger account of the Corporate Debtor and tried to convince us that the said amount is reflected in the ledger account of the Corporate Debtor at page 77 and it comes within the acknowledgment under Section 18 of the Limitation Act. If we shall accept the contention of Ld. Counsel for the applicant that it is an acknowledgment of debt under section 18, then a fresh right to apply accrues from the date when the debt is acknowledged and as per the contention of the Ld. Counsel for the applicant that the ledger is dated 14.03.2016 therefore, if we shall count the period of limitation from the date of 14.03.2016, then the applicant must filed the application within three years from 14.03.2016 i.e. on or before 13.03.2019 but the present application is filed on 15.01.2020, that is much after the period of three years from the date of acknowledgement.

At this juncture, we would like to refer submissions made on behalf of the Ld. Counsel appearing for the applicant. In course of arguments he has placed reliance upon the decision reported in AIR 2012 SC 3240 in a case to Daya Singh and other Vs. Gurudev Singh and others. We have gone through the decision and we find that the facts of the above-said case are different from the facts of the case in hand. Therefore in our considered view that decision will not help the applicant to substantiate his submissions that right to sue accrues from the date when the corporate debtor refuses to pay the amount. Therefore, we are of the considered view that the right to sue accrues from the date when the applicant claimed that the debt has been acknowledged that is 14.03.2016.

So far as the decisions reported in (2019) 11 Supreme Court Cases 633 concerned and the Civil Appeal No. 7673/2019 is concerned, there is no dispute that the Article 137 of the Limitation Act is applicable in case of IBC, and therefore, that decisions will not help the applicant rather it Corroborate our contentions that the Limitation runs from the date when the right to apply accrues that is either from the first date of debt become due or the date when it was acknowledged. Since the acknowledgement was made on 14.03.2016 and the present application has been filed on 15.01.2020 therefore, the present application is barred by the limitation. Then we have no other option but to dismiss the present application. Accordingly the present application is dismissed as barred by limitation.