JUDGEMENT

ASHOK BHUSHAN, J. This Appeal has been filed against the order dated 09.06.2022 passed by the Adjudicating Authority (National Company Law Tribunal), -2- New Delhi, Bench V by which order the Section 7 application filed by the Appellant has been dismissed as barred by time. Brief facts of the case giving rise to this Appeal are:

(i) The Respondent – Corporate Debtor through its Director Mr.

D. K. Gupta entered into a Memorandum of Understanding (MOU) dated 07.08.2013 with M/s Airwil JKM Infrastructure Pvt. Ltd. for carrying development on the land owned by the Corporate Debtor situated at Sector 135, Noida, Distt. Gautam Budh Nagar.

(ii) The Infrastructure Company i.e. M/s Airwil JKM Infrastructure Pvt. Ltd. alongwith the Financial Creditor and the affiliate companies paid a sum of Rs.15 Crores in terms of the MOU and an additional amount of Rs.1.75 Crores was also paid.

(iii) Out of the above amount of Rs.16.75 Crores, the Financial Creditor namely JKM Infrastructure Pvt. Ltd. (Appellant herein) paid Rs.2.75 Crores. The Corporate Debtor could not acquire/amalgamate the Plot No. 10 as required in terms of the MOU dated 07.08.2013. The Corporate Debtor having not acquire, the MOU was not implemented.

(iv) The Corporate Debtor again approached the Infrastructure Company and it was decided that a new agreement shall be executed i.e. the Property Development Agreement between the -3- Corporate Debtor and the affiliate company of the Infrastructure Company i.e. Airwil JKM Infracon Pvt. Ltd. (v) The MOU dated 07.08.2013 was cancelled and Property Development Agreement dated 06.09.2014 was executed between the Corporate Debtor and Airwil JKM Infracon Pvt.

Ltd. (hereinafter referred to as ‘Infracon Company’). The amount received under the MOU was not adjusted in the Property Development Agreement except the amount of Rs.1 Crore.

(vi) The Property Development Agreement was also subsequently cancelled by the Corporate Debtor alleging that the Infracon Company did not pay the balance amount of Rs.14 Crores within 45 days.

(vii) The Corporate Debtor initiated an Arbitration Proceeding against the Infracon Company in the Delhi High Court where an arbitration award was delivered dated 16.10.2018 which award was modified in proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 by the Delhi High Court. In the pleadings filed in the Arbitration Proceeding the receipt of the amount in pursuance of MOU dated 07.08.2013 was not denied by the Corporate Debtor.

(viii) The Financial Creditor (Appellant herein) filed an application under Section 7 against the Corporate Debtor claiming an amount of Rs.2,70,00,000/- plus Rs.3,03,75,000/- towards -4- interest totaling to Rs.5,73,75,000/-. The application was filed by the Financial Creditor in April, 2022. The Adjudicating Authority heard the Appellant and by order dated 09.06.2022 dismissed the application as barred by time. Appellant aggrieved by the order of the Adjudicating Authority filed this Appeal.

2. This Tribunal issued notice to the Respondent by its order dated

23.08.2022 noticing the following: “O R D E R 23.08.2022: Learned Counsel for the Appellant submits that the Adjudicating Authority has committed error in rejecting the Application on the ground that it is barred by time. It is submitted that debt is not barred by time and there were ample materials on record to indicate that it was not barred by time. Submissions need scrutiny. Post as well as Email. Requisites along with process fee, if not filed, be filed within two days.

Reply Affidavit may be filed within three weeks.

Rejoinder, if any, may be filed within two weeks, thereafter.

List this Appeal on 12^th October, 2022.” -5-

3. In pursuance of the notice issued by this Tribunal the Corporate Debtor filed a reply on 10.11.2022 to which rejoinder affidavit has also been filed on behalf of the Appellant.

4. We have heard learned counsel for the parties.

5. Learned