SANJAY BAGRODIA Vs. SATHYAM GREEN POWER PVT LTD

JUDGEMENT

(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:

(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.