The IBC does not exclude the application of Section 6 or 14 or 18 or any other provision of the Limitation Act to proceedings under the IBC in the NCLT/NCLAT. Provisions involved in the interplay between IBC and Limitation Act. limitation law shall be applicable to the Code. February 11, 2019. Parag Gupta and Associates [AIR (2018) SC 5601], wherein it was held that, since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the IBC from the inception of the IBC, Article 137 of the Limitation Act gets attracted. The Limitation Act (hereinafter 'the Act') prescribes time limits for various suits under which an affected party may approach the court. The aspect of applicability of the Limitation Act, 1963 (Limitation Act) to the proceedings under the Insolvency and Bankruptcy Code, 2016 (IBC) has been a subject matter of various proceedings under IBC. The controversy reached the Supreme Court in early 2021 resulting in a series of judgements which settled the issue of applicability of the Limitation Act to proceedings under IBC. The Code was enacted to consolidate and reorganize insolvency laws in the country, with an aim to maximise the value of assets under resolution, and to balance interests of resolution stakeholders. Limitation Act on IBC cases, The Hindu Business Line. Subsequently, it was also clarified by the Hon'ble Supreme Court, in the matter of B.K. 01.12.2016 . And under Limitation Act, 1963 a period of three years has been prescribed for recovery of debt subject to provisions contained under section 4 to 24 of the Limitation Act. This question has been raised in number of cases. A contentious issue in the interplay between the Insolvency and Bankruptcy Code, 2016 (IBC) and the Limitation Act, 1963 (Limitation Act) has been the applicability of Section 18 of the Limitation Act (Section 18), which stipulates that a fresh period of limitation shall be computed from the time of the acknowledgement of liability in writing before the expiration of the prescribed period of . In Babulal Vardharji Gurjar vs. Ltd. & Anr., the Supreme Court decided that the application filed . 68. Since the Limitation Act is applicable to applications filed under sections 7 and 9 of the IBC from inception, article 137 of the Limitation Act is evoked, which provides the period of limitation in case of "any other application for which no period of limitation is provided elsewhere" as three years from the time when the right to apply accrues. the applicability of the limitation act, 1963 (limitation act) to the applications under the insolvency and bankruptcy code, 2016 (code) has been settled long back, after a series of contradictory rulings [1], by the report of the insolvency law committee of march 2018 [2] followed by insertion of section 238a in the code, which was then upheld … When the Insolvency and Bankruptcy Code ("IBC/Code") came into force on 01.12.2016, there was no provision for applicability of Limitation Act, 1963 on the applications seeking initiation of Corporate Insolvency Resolution Process (CIRP) against the corporate debtor under section 7,9 and 10 of the Code. Prologue: We saw in the previous blog post, the ruling of the NCLAT in the Neelkanth Case, that Limitation Act is inapplicable for IBC Proceedings as the Code does not expressly say that Limitation Act applies.In that context, I had the opportunity to research the case law further on the subject to again further insight. Even if the IBC is considered a self . Babulal Vardharji Gurjar v. Veer Gurjar Aluminium Industries Pvt. Sec 433 of the Companies Act makes it clear that the provisions of the Limitation Act of 1963 shall be applicable to proceedings before the Tribunal or the Appellate Tribunal. Applicability of Limitation Act. Article 137 of the Limitation Act states that if the period of limitation has not been specified for any application then the period . The aspect of applicability of the Limitation Act, 1963 (Limitation Act) to the proceedings under the Insolvency and Bankruptcy Code, 2016 (IBC) has been a subject matter of various proceedings under IBC. Intended to be a 'complete code', it nonetheless had no limitation . Applicability of Section 18 of the Limitation Act to proceedings under IBC: Need for reconsideration As a result of the judgment in Babulal Vardharji Gurjar, genuine cases where defaults can be resolved may head into insolvency proceedings because the law did not allow parties further time to resolve the issue. 2734 of 2020] (" Laxmi Pat ") has settled the issue of the applicability of Section 18 of the Limitation Act, 1963 (" Limitation Act ") to applications for initiation of insolvency proceedings under the Insolvency and Bankruptcy Code, 2016 (" IBC "). Educational Services Private Limited v Parag Gupta And Associates, that IBC proceedings cannot be initiated based on time barred claims and that Limitation Act is applicable to IBC. The real fight is between Article 137 and Article 62 of the Limitation Act, 1963 and whether the decision of NCLT and NCLAT to admit the application upon invocation of Article 62 . The Supreme Court did not find merit in this argument and upheld the applicability of Section 18 of the Limitation Act on the IBC and held that . www.carajput.com; IBC "The Limitation Act is applicable to applications submitted Under section 7 and section 9 of the IBC Code from the . Applicability of limitation act does not bar each and every debt and default which occurred prior to the filing of an application under IBC. 1 The Limitation Act sought to consolidate and amend the law governing limitation of suits and legal proceedings. However with the introduction of section 238-A, in most of the cases, where a resolution proceeding is initiated . application made by respondent No. This has been deliberated upon in several judgments of the National Company Law Tribunal (the NCLT) and the National Company Law Appellate Tribunal (the NCLAT). Article 137 prescribes time period for filing application, where no specific period is provided under other provisions of Limitation Act. In the case of Mis Deem Roll Tech Limited, the NCLT held . The Hon'ble court went on to say that the IBC does not exclude the application of Section 6 or 14 or 18 or any other provision of the Limitation Act to proceedings under the IBC in the NCLT /NCLAT. for initiation of an application, whether under Section 7 or under Section 9 of the IBC, is default on the part of the Corporate Debtor, and the provisions of the Limitation Act 1963, as far as may be, have been applied to proceedings under the IBC, there is no reason why Section 14 or 18 of 5. The aim of the Act is two-fold: first, to ensure litigants are attentive with regard to their remedy in court, and second, to reprimand those who fail to approach the court, by barring any approach to the court after the time period. They further submitted that though it is well-established that section 18 of the Limitation Act is applicable to proceedings of section 7 of the IBC, he contended that sufficient material was not placed on record (for acknowledgement of debt) for section 18 of the Limitation Act to become applicable to Section 7 of IBC in this case. The IBC did not contain any provision dealing with the issue of limitation for filing petitions under Section 7 and 9, when it was first enacted. 1.1 applicability of provisions of limitation act, 1963 (' limitation act ') to the proceedings under the insolvency and bankruptcy code, 2016 (" code ") in so far as initiation of corporate insolvency resolution process (" cirp ") based on time-barred debt, has elicited divergent responses from different benches of national company law tribunal … applicability of the Limitation Act, 1963 to the IBC is much the same. can be filed without an application for, and furnishing of a certified copy. Commencement of limitation period to file application under Section 9 of IBC in case of an Arbitral Award of Default. SC further observed that while 'date of acknowledgement of debt' may extend the limitation as per Section 18 of the Limitation Act, 1963 the same is only relevant for recovery suits and is not applicable for initiation of CIRP under the IBC. In any event, Section 12(2) of the Limitation Act excludethe time taken from s the date of order to it becoming available; h) Section 61 of the IBC prescribing limitation period is subservient to the a principle of . INTRODUCTION. As a general rule once the right to sue accrues, the period of limitation commences and runs continuously until institution of the relevant proceedings. With the introduction of Section 238A to the IBC, in which it is provided, that provisions of the Limitation Act, shall apply to the proceedings and appeals, as the case may be, under the IBC, with retrospective effect, any remnants of uncertainty can be cast aside with respect to applicability of Limitation Act and its provisions to IBC . Babulal Vardharji Gurjar v. Veer Gurjar Aluminium Industries Pvt. In what could be another blow to the Insolvency . Ever since the inception of IBC, the Courts in India have deliberated upon an important issue concerning the applicability of Limitation Act, 1963 on the applications and proceedings under IBC. The limitation period get renewed at multiple occasions. Recently, in the judgment dated 14 th August 2020 in Babulal Vardharji Gurjar v. Veer Gurjar Aluminium Industries Pvt. Applicability of Limitation Act to applications filed under section 7 and 9 of the IBC Limitation period begins from the date of Default A Suit for Recovery does not shift forward the date of Default Section 18 of the Limitation Act as applicable to sections 7 and 9 of the Code Acknowledgment u/s 18 of the Limitation Act and its requirements The aforementioned view of the NCLAT was challenged before the Supreme Court wherein it was argued that Section 18 of the Limitation Act does not apply to proceedings under the Code at all. Case Laws National Company Law Tribunal There is no specific provision which makes the act applicable on IBC. Section 433 of the Companies Act, 2013 provides for application of the provisions of the Limitation Act to proceedings or appeals before the Tribunal or the Appellate Tribunal. However, still the ambiguity of the applicability of limitation law in its true sense was not resolved and in light of the confusion of an explicit provision and having realized the ambiguity with respect to the applicability of the Limitation Act upon proceedings under the IBC, the Parliament inserted section 238A to the IBC through the . Applicability of the Limitation Act, 1963 to proceedings under Insolvency and Bankruptcy Code, 2016 (IBC) had long been a debated issue. Since its enactment, the Code saw many amendments and one amongst them has been section 238-A that made the Limitation Act, 1963 applicable to it. The court, in order to determine the applicability of the Limitation Act to the IBC, went on to observe the provisions of the two laws. What actually forms the point of dispute is the matter of time-barred debts. The Apex Court has held that Section 18 of the Limitation Act ("Section 18") applies to extend the period of limitation for filing an application under Section 7 of the IBC. The bench also noted that the IBC does not exclude the application of Section 6 or 14 or 18 or any other provision of the Limitation Act to proceeding under the IBC in the NCLT/NCLAT. Posted on September 8, 2020 November 8, 2020; by CBCL [By Prashansa M. Agrawal] The author is an Advocate practicing in the High Court of Bombay. The question of applicability of the Limitation Act, 1963 ("Limitation Act") to the Code has been deliberated upon in several judgments of the NCLT and the NCLAT. The Supreme Court, last week, held that the Limitation Act of 1963 was applicable to the Insolvency and Bankruptcy Code (IBC) since the inception of the new bankruptcy law, which has been in effect since December 2016. Therefore, if any entry is indeed made, then a fresh period of limitation under section 18 of the Limitation Act would begin from the date of such accounts. as noticed, in b.k. Section 238A was inserted by the IBC (second Amendment) Act, 2018 which stated that the provisions of the Limitation Act will be applicable to the proceedings under NCLT, NCLAT, DRT, and DRAT.. SC further observed that while 'date of acknowledgement of debt' may extend the limitation as per Section 18 of the Limitation Act, 1963 the same is only relevant for recovery suits and is not applicable for initiation of CIRP under the IBC. made clear that vide Section 238A of the IBC, Section 18 of the Limitation Act is applicable to a proceeding under Section 7 of the IBC. Background Under the Insolvency and Bankruptcy Code 2016 (the Code), there has been an ambiguity with respect to applicability of the Limitation Act, 1963 (the Limitation Act). The period of limitation for making an application under Section 7 or 9 of the I&B Code is 3 years from the date of accrual of the right to sue, that is, the date of default. APPLICABILITY OF LIMITATION ACT TO APPLICATIONS FILED UNDER SECTION 7 AND 9 OF THE IBC Let us first and foremost draw our attention to Article 137 of the Limitation Act, which reads as; "Any other application for which no period of limitation is provided elsewhere in this Division." Conspicuously this This code provides single window clearance system of all earliest enactment. 2 under Section 7 of the Code is within limitation. Takeaway: 1. Introduction: The Limitation Act, 1963 is the Act which governs the time period within which one can file a suit to sue another to get justice. Baidyabati Sheoraphuli Co-Operative Bank Ltd and Another, REED 2021 SC 03007 held that in light of Section 238A of Insolvency and Bankruptcy Code, 2016 (IBC) which stipulates the applicability of provisions of Limitation Act, 1963, as far as may be possible, to proceedings under IBC, Section 14 of the Limitation Act would also apply for the . Much has been written and discussed on the topic of applicability of Section 18 of the Limitation Act, 1963 to proceedings under the Insolvency & Bankruptcy Code, 2016 , especially after the Supreme Court's recent decision in Babulal Vardharji Gurjar (BVG). However, many conflicting views have been expressed in relation to the present provision. Under the IBC, the application of the Limitation Act was incorporated by way of an amendment introducing Section 238A within the IBC, which provides that "the provisions of the Limitation Act shall, as far as may be, apply to the proceedings or appeals . All the provisions of the Limitation Act are applicable to proceedings in the NCLT/NCLAT, to the extent feasible, it said. The court ruled, "There can be little doubt that Section 14 applies to an application under Section 7 of the IBC. Section 2 of the code states that the provisions of code shall apply to the following person: Any company incorporated under the Companies Act, 2013 or any other previous law. The IBC does not exclude the application of Section 6 or 14 or 18 or any other provision of the Limitation Act to proceedings under the IBC in the NCLT/NCLAT. With respect to Part, I of the Code, sections 7, 9, and 10 of the Code plainly ordain that an application can be filed by a financial creditor against a corporate debtor. With the introduction Section 238A of Insolvency and Bankruptcy Code, 2016, with effect from 6th June, 2018, it was made very clear that the provisions of Limitation Act, 1963 are applicable to the proceedings or appeals before the Adjudicating Authority, i.e., Period of limitation is to be considered for filing the petition to initiate Corporate Insolvency Resolution Process against the . The existing jurisprudence on this subject indicates that if a law is a complete code, then an express or necessary exclusion of the Limitation Act should be respected. The use of the words 'National Company Law Tribunal' in Section 60(5) of IBC instead of 'Adjudicating Authority' indicates the intent of the Legislature to make Section 433 of the Companies Act and by extension, the Limitation Act applicable to IBC. Initially, as IBC was silent on this issue, NCLAT in M/s Neelakanth Township and Construction Pvt ltd Vs Urban Infrastructure Trustees ltd . The Limitation Act was enacted with the object of consolidating and amending the law for the limitation of suits and other proceedings. While it was made clear that the Limitation Act is infact applicable in matters under the Code, another budding issue was the date from which such limitation period was to be determined. In a batch of matters, the Hon'ble NCLAT held that the Act does not apply to applications made under the Code from the date of commencement (i.e. Prior thereto, claims under IBC were held to be immune to the law of limitation. lex non cogit ad impossibilia Aug 15, 2020, Updated Aug 15, 2020, 9:47 PM IST. Such a corporate debtor can either be a corporate person, who had borrowed money . Educational Services (Supra), it has clearly been held that the limitation period for application under Section 7 of the Code is three years as provided by Article 137 of the Limitation Act, which commences from the date of default and is extendable only by application of Section 5 of Limitation Act . The applicability of the Limitation Act, 1963 has been a well-traversed issue since the inception of the Insolvency and Bankruptcy Code, 2016 (IBC). Ltd., 2020 SCC OnLine SC 647. One of the main issues which have been in mainstream is the applicability of Limitation Act on IBC. Section 60 (6) of the code says that the Limitation Act shall not apply during moratorium. educational services, it has clearly been held that the limitation period for application under section 7 of the code is three years as provided by article 137 of the limitation act, which commences from the date of default and is extendable only by application of section 5 of limitation act, if any case for condonation of … On 09.08.2019, after having heard learned counsel for the appellant and the respondent No. The SC, in its decision dated October 11, 2018, in B. K. Educational Services Private Limited v.Parag Gupta and Associates[1], addressed the issue of the applicability of the recently amended Section 238A (which came into effect on June 6, 2018) of the IBC, which deals with applicability of the Limitation Act, 1963 ('Limitation Act') to all applications made under the IBC. The post The applicability of Limitation Act to proceedings under the Insolvency And Bankruptcy Code, 2016 appeared first on iPleaders. On 14 August 2020, the Supreme Court ( "SC" ), yet again, cleared the air on the applicability of the Limitation Act, 1963 ( "Limitation Act") to the Insolvency & Bankruptcy Code, 2016 ( "the Code" ). Also, according to the learned Senior Advocate, the judgments of the High Courts and the judgments of this Court have expressly held that entries All the provisions of the Limitation Act are applicable to proceedings in the NCLT/NCLAT, to the extent feasible. Limitation period for IBC application is 3 years from the date of default, says SC. Applicability of Limitation Act to Insolvency Applications: NCLT carves out exception. Limitation Act, 1963 applicable to applications against personal guarantors under IBC, 2016. The Limitation Act was enacted with the object of consolidating and amending the law for the limitation of suits and other proceedings. The right to sue therefore accrues when a default occurs. The Limitation Act, 1963 is applicable to applications filed under Sections 7 and 9 of the IBC from the inception of the IBC; Article 137 of the Limitation Act, 1963 gets attracted to applications filed under Sections 7 and 9 of the IBC, therefore, 'the right to sue' accrues when a default occurs. 2 preliminarily, we issued notice to the 8 Hereinafter, the Limitation Act, 1963 is also referred to as 'the Limitation Act'. Neither was there any provision in this regard nor was the Limitation Act, 1963 made applicable to IBC. The Court observed that in the case of B.K. Context The provisions of the Limitation Act were made applicable to proceedings under the IBC by introduction of Section 238A [1] of the IBC (which was inserted by way . Insolvency and Bankruptcy Code, 2016 was initially silent on the application of the Limitation Act in matters pertaining to IBC. Therefore, the Limitation Act must be applicable to IBC. Condonation of delay beyond 90 days Put simply, the apex court has confirmed the operation of law of limitation over IBC proceedings and reaffirmed that three-year time period as prescribed under the Limitation Act for recovery of. The absence of an express bar in the IBC against Limitation Act and read with Sec 433, implies that Limitation Act applies to all IBC proceedings. Section 433 of the Act provides that the provisions of the Limitation Act, 1963 shall, as far as may be, apply to proceedings or appeals before the Tribunal or the Appellate Tribunal, as the case may be. However, since nothing has been explicitly given in the code with regards to this, a staunch stance cannot be taken as the Supreme Court has also left the question of applicability of Limitation Act to IBC open. Insolvency and Bankruptcy code, 2016 is a consolidate enactment of various code. The Supreme Court has recently given some very important rulings with regards to Section 18 of the Limitation Act and Section 238 of the IBC i.e The Insolvency and Bankruptcy Code. The provisions of the Limitation Act, 1963 shall, as far as possible, apply to proceedings or appeals before the Adjudication Authority, the NCLAT, the DRAT, as the case may be.'-Section 238A of IBC. Recent Judgments Related to Applicability of Limitation, SEBI and Income Tax Act on IBC. [Civil Appeal No. In Babulal Varsharji Gurjar v. Therefore, all the provisions of the Limitation Act are applicable to proceedings in the NCLT/NCLAT, to the extent feasible. Limitation and IBC. The Supreme Court has reiterated that the limitation period for application under Section 7 of the Insolvency and Bankruptcy Code is three years as provided by Article 137 of the Limitation Act,. All the provisions of the Limitation Act are applicable to proceedings in the NCLT/NCLAT, to the extent feasible. Applicability of Limitation Act 1963, in Insolvency and Bankruptcy Code, 2016. The provisions of the Limitation Act were made applicable to proceedings under the IBC by introduction of Section 238A of the IBC (which was inserted by way of the Insolvency and Bankruptcy Code . The Mumbai Bench of NCLT has held that, a debt that is barred by limitation can be proceeded against under provisions of the Insolvency and Bankruptcy Code (IBC), if the debt continued to be recorded in the books of the corporate debtor. If the suit is filed after the expiration of the time period as specified in this act, thus, it will be barred by limitation.It also includes provisions for condonation . Extension of Limitation Period Under IBC: A Creditor's Dilemma. A vexed issue which continues to plague the interest of banks and FIs is the applicability of the law of limitation to proceedings under the IBC. 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