ORDER

Per: Bidisha Banerjee, Member (Judicial)

1. The Court congregated through a hybrid mode.

2. Heard the Ld. Counsels of both the parties.

3. The instant application has been filed by Jai Sinter Polycon Private Limited, hereinafter referred to as the ‘Financial Creditor’ under Section 7 to initiate Corporate Insolvency Resolution Process, in short CIRP against Beria Commercial Impex Private Limited.

4. Submissions of the Ld. Counsel on behalf of the Petitioner

4.1 It is submitted that the Corporate Debtor approached the Financial Creditor to lend and advance and/or to grant inter-corporate loan and the Corporate Debtor agreed to pay an interest @17% per annum and on such request the Financial Creditor lent and advance and/or grant inter-corporate loan.

4.2 Further it is submitted that on 5th May, 2010 the Financial Creditor paid15,56,589.00/-a sum of Rs. (Rupees Fifteen Lakhs Fifty Six Thousand Five Hundred Eighty Nine Only) in favour of the Corporate debtor at rate of interest of 17% per annum and deducted an amount of Rs. 25,500.00/. A Хегох сору certificates issued by the bank, money receipt and confirmation of the account for the period 1st April, 2010 to 31st March, 2011, 1st April, 2011 to 31st March, 2012 and Form 16A under section 203 of the Income Tax Act are annexed and collectively marked with the Letter "D"

4.3 That the Corporate debtor issued one cheque bearing No. 019817 dated1st July, 2013 for Rs. 15,00,000.00 drawn on Union Bank Of India, IFB branch, Kolkata but on presentation the said cheque was dishonoured for nonpayment. A Xerox copy cheque bearing No. 019817 dated 1st July, 2013 for Rs. 15,00,000.00 is annexed and marked with the Letter "E".

4.4 That the Corporate Debtor failed and/or neglected to pay any interest thereafter the Financial Creditor on 16th July, 2015 through its advocate sent a notice to the Corporate Debtor calling upon them to pay a sum of Rs. 15,82,089.00/-(Rs.15,56,589.00 on account of principal and Rs. 25,500.00 on account of TDS). A copy of the Advocate’s Legal Notice is annexed hereto and marked with the Letter "F".

4.5 Corporate Debtor chose not to reply to the Financial Creditor’s notice dated 16th July, 2015 sent through its advocate nowhere denied that a loan amount is not due or payable.

5. Submissions of the Ld. Counsel on behalf of the Respondent

5.1 It is submitted that Beria Commercial Impex Private Limited stands as a distinguished trader in local market of imported timber logs as well as in locally manufactured timber. The company was incorporated in the year 1991 in the state of West Bengal. The timber trading business of the company was running well upto March 2012 but had suffered huge loss in F Yr 2012-13 and had to close down its timber trading business and since then it has been incurring losses.

5.2 Under the provisions of Section 238A of the IBC, the Limitation Act, 1963, is applicable to proceedings under the Code. In the present case, the alleged default is time-barred, as it falls beyond the prescribed limitation period of three years under Article 137 of the Limitation Act, 1963, which governs applications for initiating insolvency proceedings.

5.3 The cause of action arose more than three years ago, and there has been no acknowledgment of debt under Section 18 of the Limitation Act by the corporate debtor nor any part payment to extend the limitation period. Given that the debt is time-barred, the application under Section 7 of the IBC cannot be entertained. The Hon’ble Supreme Court has affirmed this in B.K. Educational Services Private Limited v. Parag Gupta and Associates, where it held that the IBC proceedings are subject to the Limitation Act, and any application filed after the expiry of the limitation period is non-maintainable.

5.4 The Insolvency and Bankruptcy Code (Amendment) Act, 2020, raised the minimum threshold for initiating insolvency proceedings from ₹1 lakh to ₹1 crore under Section 4 of the IBC. The financial creditor’s claim, however, f