B S V Prakash Kumar - (1.) It is Company Petition filed u/s. 9 of Insolvency & Bankruptcy Code (Code) by the Operational Creditor against the Corporate Debtor on the ground that the Petitioner raised invoices dated 31.07.2014 for an amount of Rs. 3,57,160/- and another invoice dated 16.09.2014 for an amount of Rs. 2,49,184/- towards the goods namely polymers supplied to the Corporate Debtor, when this Debtor failed to make payment against the amounts raised through above mentioned invoices, the Petitioner issued Section 8 Notice on 10.06.2017 under IB Code, since neither payment has been made nor the corporate debtor replied to Section 8 Notice within 10 days from the date of receipt of Section 8 notice, the Petitioner filed this petition for initiation of Insolvency Resolution Process under the Code against this Corporate Debtor, hence this Petition. Looking at the facts of the case, we have ascertained that the Petitioner sent Section 8 notice for two invoices dated 31.07.2014 and 16.09.2014 for payment, since this Petitioner has not received the aforesaid amounts, the Petitioner filed this Petition on 22.08.2017 u/s. 9 of Code, by the time one of the invoices raised on 31.07.2014 was time barred.
(2.) Therefore, now the point to be decided is as to whether or not this petition should be admitted u/s. 9 when one of the invoices is time barred by the time Company Petition filed.
(3.) Before going into facts of the case, this Bench is obliged to say that it is general and settled proposition that prosecuting party cannot seek remedy over time barred debt. For one of the invoices is time barred, to get over this point, the Petitioner's Counsel Mr. Sam Kapadia relied upon a judgment passed by Hon'ble National Company Law Appellate Tribunal (NCLAT) in Neelkanth Township & Construction (P.) Ltd. v. Urban Infrastructure Trustees Ltd.,2017 85 taxmann.com 120 (NCLT - Mum.) by placing para 24, which is as follows: "The next ground taken on behalf of the appellant is that the claim of the respondent is barred by limitation, as the Debentures were matured between the years 2011-2013 is not based on law. There is nothing on the record that Limitation Act, 2013 is applicable to I & B Code. Learned Counsel for the appellant also failed to lay hand on any of the provision of I & B Code to suggest that the Limitation Act, 1963 is applicable. I & B Code, 2016 is not an Act for recovery of money claim, it relates to initiation of Corporate Insolvency Resolution Process. If there is a debt which includes interest and there is default of debt and having continuous course of action, the argument that the claim of money by respondent is barred by Limitation cannot be accepted".;