The acknowledgment of debt via email does not extend the limitation period for filing applications under the Insolvency and Bankruptcy Code.

JUDGMENT

Per: Justice Rakesh Kumar Jain:

This appeal is directed against the order dated 31.10.2023, passed by the National Company Law Tribunal, Court-II, 1VIumbai Bench (in short Tribunal') by which an application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') r/w Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (in short 'Rules') by the Appellant against Gammon India Limited (Corporate Debtor) for the resolution of an amount of Rs. 77 20, 941/- as on 25.08.2018, has been dismissed on the ground of limitation.

2. In brief, Respondent vide its two letters of intent dated 19.01.2010 entered with the Appellant appointed it as subcontractor for one of the works under the main contract entered between VISA Steel Limited and the Respondent. The Appellant agreed to provide certain materials alongwith the necessary services to Respondent. The parties were performing their obligations as per the terms and conditions mentioned in the LOIs and the Appellant was issuing running invoices from time to time but it is alleged that only part payment was made. The rn Appellant reconciled the accounts of the Respondent and found a sum of Rs. 50,13,602 payable. The last invoice was raised on 31.11.2012 and it is alleged by the Appellant that the debt was admitted by email by the Respondent on 07.10.2016. The Appellant issued notice of demand on 07.08.2018 and ultimately on 27.09.2019 issued demand notice under Section 8 of the Code to Respondent. According to the Appellant the petition under Section 9 was filed before the Tribunal on 09.10.2019 because the Tribunal was closed because of Holiday from 02.10.2019 till 08.10.2019 (Dusshera Holiday). The application filed by the Appellant was contested by the Respondent before the Tribunal on the ground that even if the acknowledgment of debt is considered from the email dated 07.10.2016, the petition having been filed on 09.10.2019 is barred by limitation. It was also contended that the email exchanged between the parties cannot be treated as acknowledgement on the part of the Respondent and reliance was placed on a decision of this Court in the case of M/s G.L. Shoes Vs. M/s Action Udhyog Pvt. Ltd., CA (AT) (Ins) No. 846 of 2022 decided on 24.05.2023 alleging that Section 18 of the Limitation Act, 1963 (in short 'Act') provides that acknowledgement should be in writing and signed by the party against whom such right is claimed. The Tribunal while dealing with the contention of the Appellant that the petition has been filed on 09.10.2019 is within• the period of limitation made the following observations which are reproduced as under:-

"Having perused the record, we are of the considered view that admittedly the last invoice was issued on 31.11.2012. Even if the email dated 07.10.2016 is taken into consideration the present petition cannot be said to have been filed within the period of limitation. The present petition was filed on 09.10.2019 which is beyond period of three years even from the so-called acknowledgement through email dated 07.10.2016."

3.(cid:9) It was also contended by the Appellant that the period of 10 days of the notice issued under Section 8 of the Code has to be excluded from the total period of limitation of three years as envisaged under Article 137 of the Act and relied upon a decision of the Hon'ble Supreme Court in the case of Disha Constructions And Ors. Vs. State of Goa and Ors. , Manu/SC/ 1489/2011 but the said contention was repelled by the Tribunal on the ground that in the case of Disha Constructions (Supra) the Hon'ble Supreme Court was dealing with 0 of the CPC which is not applicable to the present case because the Code