1. Appeal admitted.
2. Heard learned counsel for the parties.
3. This appeal takes exception to the judgment and order dated 17.09.2018 passed by the National Company Law Appellate Tribunal at New Delhi, in Company Appeal (AT) (Insolvency) No. 549/2018.
4. The National Company Law Appellate Tribunal dismissed the appeal preferred by the appellant against the order passed by the National Company Law Tribunal, Mumbai admitting the application bearing No. CP (IB) - 488/I & BP/MB/2018 vide order dated 09.08.2018.
5. For the nature of order that we propose to pass, it is not necessary to reproduce the factual matrix of the case. Suffice it to observe that the respondent filed the aforementioned Company Petition before the National Company Law Tribunal under Section 7 of the I.& B. Code. The same was admitted on 09.08.2018 and consequential directions came to be issued in the matter. In the appeal preferred before the National Company Law Appellate Tribunal, one of the grounds agitated in the appeal memo was that the claim of the respondent was admittedly barred by time. For, admittedly, the default was committed on 08.07.2011 whereas the petition had been filed in March 2018.
6. Although, we find that the ground articulated in the appeal memo is vague, but, as the objection regarding limitation goes to the root of the matter and touches upon the jurisdiction of the National Company Law Tribunal to proceed with the claim of the respondent; and since the recent decision of this Court in B.K. Educational Services Pvt. Ltd. Vs. Paras Gupta & Associates - AIR 2018 SC 5601 [LQ/SC/2018/1327] has held that the question of limitation is applicable even to applications filed under Section 7 of the I.& B. Code, it would be just and necessary to answer the said objection appropriately, in accordance with law.
7. Indisputably, neither the National Company Law Tribunal nor the National Company Law Appellate Tribunal, in the present case, has examined the said contention. Indeed, according to the respondent, the plea of claim being barred by limitation is unstatable and, to buttress this argument, the respondent has relied upon the entries in the books of account of the appellant and other related documents. However, that is a matter which ought to be agitated before the National Company Law Appellate Tribunal in the first place.
8. Accordingly, we relegate the parties before the National Company Law Appellate Tribunal for fresh consideration of the objection raised by the appellant that the claim of the respondent is barred by limitation. The appellant is granted liberty to file additional affidavit in the remanded appeal, giving the factual matrix on the basis of which the ground of limitation is founded, so that the respondent can meet that case appropriately.
9. The appellant must file such affidavit on or before 05.03.2019 before the National Company Law Appellate Tribunal in the remanded Company Appeal. The respondents are free to file their response to the said affidavit within one week. Advance copy of the affidavits be exchanged between the parties well in time. The National Company Law Appellate Tribunal is directed to decide the said issue expeditiously and preferably within five weeks from today. Ad-interim relief granted by this Court on 12.11.2018 will continue for a period of 6 weeks from today.
10. The appeal is allowed. The impugned order is set aside and the parties are relegated before the National Company Law Appellate Tribunal by remanding the stated appeal for deciding the issue of limitation as aforementioned. No costs.
