JUDGEMENT

[Per: Barun Mitra, Member (Technical)] The present appeal filed under Section 61 of Insolvency and Bankruptcy Code, 2016 (“IBC” in short) by the Appellant arises out of the Order dated 06.06.2022 (hereinafter referred to as “Impugned Order”) passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi Court-II) in CP (IB) No. 345 (NB)/2020. By the Impugned Order, the Adjudicating Authority has dismissed the Section 9 application filed by the Operational Creditor-M/s G.L. Shoes (the present Appellant) seeking initiation of Corporate Insolvency Resolution Process (‘CIRP’ in short) against Corporate Debtor-Action Udhyog Private Limited (the present Respondent). Aggrieved by this impugned order, the present appeal has been preferred by the Operational Creditor.

2. Making his submissions the Learned Counsel for the Appellant submitted that the Operational Creditor used to supply footwear and related products to the Corporate Debtor/Respondent on the basis of purchase orders received from them. It was also submitted that the invoices stipulated payment to be made 75 days from the date of invoice. Goods were supplied between April – June 2016 and payment fell due on 08.07.2016. The date of default on the part of the Corporate Debtor as submitted by the Appellant is 08.07.2016. The Operational Creditor issued a demand notice to the Corporate Debtor on 02.07.2019 demanding payment of Rs.22.26 lakhs as unpaid operational debt including interest @ 18% per annum. However, the Corporate Debtor did not issue any notice of dispute. The Operational Creditor thereafter filed a Section 9 application before the Adjudicating Authority.

3. The Learned Counsel for the Appellant contended that the Section 9 application was erroneously dismissed by the Adjudicating Authority on grounds of having been barred by limitation. It was submitted that the impugned order took note of date of default to be 08.07.2016 as mentioned in Part IV of the Demand Notice and held that the Section 9 application having been filed on 22.01.2020 which was well after three years from the aforementioned date of default, the same was barred by limitation.

4. It was vehemently contended that the Corporate Debtor had clearly acknowledged the debt in their email dated 05.05.2017 which therefore extended the period of limitation. The Learned Counsel for the Appellant stated that the Adjudicating Authority has erred in holding that acknowledgement of debt by email cannot be accepted on the ground that the statement of account was contained in an external file attachment to the main body of the email and that it was not duly authenticated by the signature of an authorized person and did not bear the company seal. Dilating on the issue of limitation, it was submitted that the Hon’ble Karnataka High Court in the matter of Sudarshan Cargo Pvt. Ltd. Vs. M/s Techvac Engineering Pvt. Ltd, 2013 SCC OnLine Kar 5063 (‘Sudarshan’ in short) has held that an email acknowledging the debt constitutes a valid and legal acknowledgment of debt, despite the fact that it is not a strictly "signed" document for the purposes of Section 18 of the Limitation Act, 1908. The email, being a legally recognized form of communication under the provisions of Information Technology Act, 2000 (‘IT Act’ in short), it is a valid acknowledgement under Section 18 of the Limitation Act, 1908.

5. Refuting the submissions made on behalf of the Appellant, it has been strongly contended by the Learned Counsel for the Respondent that the claim of the operational debt is clearly time-barred. It has been contended that the date of default mentioned by the Appellant in Part IV of the application is 08.07.2016 whereas the Section 9 application was filed before the Adjudicating Authority on 22.01.2020. Hence, the application having been filed after three years from the date of default, it was clearly barred by limitation and hence not maintainable.

6. As regards, the plea