DINESH MAHESHWARI, J. - (1.) Introductory with brief outline and issue involved This appeal under Section 62 of the Insolvency and Bankruptcy Code, 2016[1] is directed against the judgment and order dated 14.05.2019 passed by the National Company Law Appellate Tribunal, New Delhi[2] in Company Appeal (AT) Insolvency No. 549 of 2018 whereby, the Appellate Tribunal has rejected the contention that the application made by respondent No. 2 under Section 7 of the Code, seeking initiation of Corporate Insolvency Resolution Process[3] in respect of the debtor company (respondent No. 1 herein), is barred by limitation; and has declined to interfere with the order dated 09.08.2018, passed by the National Company Law Tribunal, Mumbai Bench[4] in CP(IB)-488/I&BP/MB/2018, for commencement of CIRP as prayed for by the respondent No. 2. [1] Hereinafter also referred to as 'the Code' or 'IBC. [2] Hereinafter also referred to as 'the Appellate Tribunal' or 'NCLAT'. [3] 'CIRP'for short. [4] Hereinafter also referred to as 'the Adjudicating Authority' or 'the Tribunal' or 'NCLT.
(2.) A brief introduction of the parties and the subject matter as also a thumbnail sketch of the relevant orders passed in this matter and the issue involved shall be apposite at the very outset. 2.1. The appellant Shri Babulal Vardhaji Gurjar has been the director of the respondent No. 1 company viz., Veer Gurjar Aluminium Industries Pvt. Ltd.[5] On or about 21.03.2018, the respondent No. 2 JM Financial Assets Reconstruction Company Pvt. Ltd.[6], while stating its capacity as the financial creditor, for being the assignee of the loans and advances disbursed by creditor bank to the corporate debtor, filed the said application under Section 7 of the Code before the Adjudicating Authority and sought initiation of CIRP in respect of the respondent No. 1. 2.2. After having considered the submissions on behalf of the financial creditor and the corporate debtor, the Adjudicating Authority, by its order dated 09.08.2018, admitted the application so made by the financial creditor and appointed an interim resolution professional[7]. Consequent to this order dated 09.08.2018, the corporate debtor (respondent No. 1) is now represented by the interim resolution professional. [5] Hereinafter also referred to as 'the corporate debtor'. [6] Hereinafter also referred to as 'the financial creditor'. [7] 'IRP' for short. 2.3. Being aggrieved by the aforesaid order dated 09.08.2018, the appellant preferred an appeal before NCLAT and contended against maintainability of the application moved by the respondent No. 2. The appeal so filed by the appellant was summarily dismissed by the Appellate Tribunal by its order dated 17.09.2018. However, the order so passed by the Appellate Tribunal was not approved by this Court in the judgment dated 26.02.2019, passed in Civil Appeal No. 10710 of 2018, after finding that the issue relating to limitation, though raised, was not decided by the Appellate Tribunal. Hence, the matter was remanded to NCLAT for specifically dealing with the issue of limitation. After such remand, the Appellate Tribunal, by its impugned order dated 14.05.2019, has held that neither the application under Section 7 as made in this case is barred by limitation nor the claim of the respondent No. 2 is so barred and has, therefore, again dismissed the appeal. Being aggrieved, the appellant has approached this Court over again by way of the instant appeal.
(3.) In the impugned order dated 14.05.2019, the Appellate Tribunal has observed that the Code having come into force on 01.12.2016, the application made in the year 2018 is within limitation. The Appellate Tribunal has assigned another reason that mortgage security having been provided by the corporate debtor, the limitation period of twelve years is available for the claim made by the financial creditor as per Article 61 (b)of the Limitation Act, 1963[8][9] and hence, the application is within limitation. [8] Hereinafter, the Limitation Act, 1963 is also referred to as 'the Limitation Act'. [9] Note: The Articles providing for different periods of limitation are contained in the Schedule to the Limitation Act, 1963 that is divided in three major Divisions viz., First Division (relating to suits); Second Division (relating to appeals); and Third Division (relating to applications). Each Division is further divided in parts with reference to the subject matter. However, the Articles in the Schedule are arranged ad seriatim. Hence, for brevity and continuity, the Articles are mentioned with reference to 'the Limitation Act' only. The Schedule and particular Part/Division have been referred wherever required contextually. ;