O R D E R
(Virtual Mode) 24.03.2022: Heard Learned Counsel for the Appellant. Learned Counsel for the Respondent No. 1 and Respondent No. 2 are also present.
2. This Appeal has been filed against the Order dated 18thFebruary, 2022 passed by the Adjudicating Authority (National Company Law Tribunal, Court- 5, Mumbai Bench) in CP No. 1258/MB/I&B/2020. By which Order, Application being CP No. 1258/MB/I&B/2020 filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC in short) by the Respondent No. 1 has been admitted as well within time.
3. Learned Counsel for the Appellant submitted that in Part-IV of the Section
7 Application, the 'Date of Default' was mentioned as 25thAugust, 2017 and from
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25thAugust, 2017, the Application was barred by time since it was filed on 28th August, 2020. He further submitted that Adjudicating Authority even after noticing the aforesaid fact has not adverted to and held that Application is not barred by time.
4. We have considered the submissions of Learned Counsel for the Parties and perused the record.
5. The Adjudicating Authority in Paragraph 6 of the Order has made following observations:
"6. The Petitioner has also filed record of default by the information utility (NESL). The statement of account produced by the Petitioner shows that the last repayment of Rs. 2 Lakhs was made by the Corporate Debtor on 31.07.2018."
6. When the last payment was made on 31stJuly, 2018, the Application filed on 28thAugust, 2020 was well within three years from the last payment. The submission of the Appellant that Application was barred by time cannot be accepted. The payment details regarding the payment was already the part of the Application which has been brought on record along with the Application and from such details regarding the payment when the Adjudicating Authority has noticed the submissions that last payment was made on 31stJuly, 2018, the Application cannot be said to be barred by time. The default and debt were proved, on that basis the Application was admitted. We do not agree with the submissions of the Learned Counsel for the Appellant that Application was barred by time.
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7. Learned Counsel for the Appellant has placed reliance on a Judgment of Hon'ble Supreme Court reported in 2020 (15) SCC 1 in the matter of 'Babulal Vardharji Gurjar Vs. Veer Gurjar Aluminium Industries Pvt. Ltd. & Anr.' and submitted that Hon'ble Apex Court has held that the date of default has to be ascertained on the basis of pleadings in Section 7 Application of the IBC. In the present case, Part-IV of the Section 7 Application of the IBC, 'Date of Default' is dated 25thAugust, 2017 there is no dispute regarding that but along with the Application the relevant documents including ledger account of the payment were also brought on record where the last payment made by the Corporate Debtor has been mentioned on 31.07.2018 and the same has been noticed by the Adjudicating Authority. In view of the last payment made on 31.07.2018 as noted above, the Application was well within time and the Financial Creditor entitled for taking benefit of 3 years period of limitation from the date of last payment. The Judgment relied on by the Learned Counsel for the Appellant does not come to any aid to the Appellant in the present case. In view of the aforesaid, we do not find any merit in the Appeal, the Appeal is dismissed.
[Justice Ashok Bhushan] Chairperson
[Dr. Alok Srivastava] Member (Technical) [Ms. Shreesha Merla] Member (Technical)
Basant/nn