- (1.) It is a material and substantive fact to notice at the outset that default of unpaid debt occurred in September, 2013 as it is expressly mentioned in the demand notice itself (Annexure-I) dated 16.02.2017 and the same reads as under:
(2.) Thus, the preliminary question, which arises for our consideration, is whether insolvency process can be triggered in a matter where the default had occurred beyond a period of 3 years and the claim has become time barred on account of period of limitation prescribed by the Limitation Act, 1963 or by virtue of rule of prudence developed by the Courts. The principal Bench of this Tribunal in the case of M/s. Deem Roll-Tech Limited vs. M/s. R.L. Steel & Energy Limited [Company Application No. (I.B.) 24/PB/2017] has already taken the view that the period of limitation would be applicable as the claim made by the Operational Creditor was barred by limitation and was being made after the expiry of period of three years. The views of the Principal Bench are evident from the following paras which read thus: "Be that as it may on a perusal of the records available before us, particularly taking into consideration the invoices as detailed above annexed as Annexure-3 (colly) to the petition coupled with the Copy of the Ledger Account for the year 2011, 2012, 2013 and 2014, all annexed as part of Annexure-4 (Colly), it is evident that the invoices relates to the period between February 2011 to January 2012 and the non-payment of dues is claimed to be in relation to 3 invoices as detailed above, and the last date of payment as per the ledger account for the period between 1.4.2013 to 31.3.2014 is that of 25.2.2014 where in a sum of Rs. 2,00,000/- is shown as received from the respondent and for the year ended 31.3.2014 the closing balance is disclosed to be in a sum of Rs. 5,59,660/- as due from the respondent company. For the year ended 31.3.2015 as well as 31.3.2016 the same amount figures as the closing balance due from the respondent as per the ledger accounts certified by the petitioner. The same seems to be the story for the period commencing from 1.04.2016 to 31.03.2017, as found in page number 26 of the petition. It is pertinent to note that none of the ledger accounts produced and the closing balances stated therein have been confirmed by the respondent company nor any other acknowledgements issued by the respondent produced by the petitioner. In view of the above facts we do not have any hesitation in holding that the amount claimed as a 'debt' by the petitioner, as against the respondent giving a ground for triggering the insolvency process as contemplated under IBC is time barred and hence the petition is liable to fail keeping in view the provisions of IBC as delineated hereunder:- 'Debt' is defined under section 3(11) of IBC to mean a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt. 'Claim' is defined under sec. 3(6) of IBC as follows: (a) a right to payment, whether or not such right is reduced to judgment, fixed, disputed, undisputed, legal, equitable, secured or unsecured; (b) right to remedy for breach of contract under any law for the time being in force, if such breach gives rise to a right to payment, whether or not such right is reduced to judgment, fixed, matured, un-matured, disputed, undisputed, secured or unsecured; It is also relevant to consider the definition of 'operational debt' and 'operational creditor' which seems to have given rise to the instant petition. Operational debt is defined under sec. 5(21) of IBC to mean a claim in respect to the provision of goods or services including employment or a debt in respect of the debt in respect of repayment of dues arising under any law for the time being in force and payable to the central government, state government or any local authority and an operational creditor is defined in sec. 5(20) of IBC means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred. As per section 60 of IBC this Tribunal has been designated as adjudicating authority in relation to corporate persons. Further as per clause (c) sub-Section (5) section 60, this tribunal is enjoined with the jurisdiction to entertain or dispose off any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under this code. Sec. 255 of IBC provides that the Companies Act 2013 shall be amended in the manner specified in the eleventh schedule to IBC and a perusal of the eleventh schedule of IBC discloses the amendments made to the Companies Act 2013 of several provisions though not section 433 of the Act wherein specifically the provisions of the Limitation Act 1963 (36 of 1963) is made applicable and that it shall, as far as may be apply to the proceedings or appeals before the Tribunal or Appellate tribunal as the case may be. Hence in the absence of any specific bar in the IBC to the application of the Limitation Act, 1963 coupled with the provisions of Sec. 433 of the Act as contained in the Companies Act 2013 which makes Limitation Act applicable to this Tribunal the debt as claimed by the petitioner is barred by limitation and hence cannot be the basis for invoking IBC before this Tribunal".
(3.) Mr. Mehta, learned Counsel for the Operational Creditor has however, argued that the aforesaid view was taken without any detail discussion of various judgments rendered by the Hon'ble Supreme Court laying down that the Tribunal are creatures of a Statute and the Limitation Act, 1963 cannot be read into the Statutes creating the Tribunals unless it is expressly provided. In support of his submission, learned Counsel has placed reliance on the judgments of the Supreme Court in the cases of L.S. Synthetics Ltd. v. Fairgrowth Financial Services Ltd. & Anr., 2004 11 SCC 456 and M.P. Steel Corporation v. Commissioner of Central Excise, 2015 7 SCC 58 and has argued that in the absence of any provision made by the Insolvency and Bankruptcy Code, 2016 (for brevity 'IBC') expressly incorporating the provision of the Limitation Act, no such provision can be read into the 'IBC. Learned Counsel has also pointed out that this Tribunal must perform its functions within the parameters laid down by IBC. The argument proceeds that the IBC is a consolidated piece of legislation as is patent from the reading of its preamble. In that regard, Mr. Mehta has also drawn our attention to Section 238 of IBC and has argued that this is a non-obstante clause which provide that the 'IBC will have its effect notwithstanding anything inconsistent therewith contained in other laws for the time being in force.;