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3. By reason of this finding, the order of the Tribunal was set aside, and the matter was remanded for a hearing on all points other than the point of limitation.

4. Learned counsel appearing on behalf of the appellants have argued, relying upon the Report of the Insolvency Law Committee of March, 2018, that the object of the Amendment Act which introduced Section 238A into the Code was to clarify the law and, thus, Section 238A must be held to be retrospective. Further, according to them, in any case, the law of limitation, pertaining to the domain of procedure, must be held to apply retrospectively in any case. For this proposition, they cited several judgments which will be referred to later in this judgment. They also referred to and relied upon the definitions under Sections 3(11), 3(12), and Section 5(6) of the Code, which, when contrasted with Section 3(6), would show that though “claim” in Section 3(6) refers to a right to payment, the definitions of “debt” and “default” in Sections 3(11) and 3(12) respectively, refer to liability or obligation in respect of a claim which is “due” and this being the case, a time-barred debt cannot be said to be “due” so as to trigger the Code. The learned counsel further attacked the Appellate Tribunal judgment by stating that an application filed in 2017 under Section 7 or 9 of the Code, praying that the Code be triggered for a debt that has become time-barred long back, say in 2011, would lead to absurdity as it could never have been the intention of the legislature to resuscitate stale and dead claims leading to the drastic consequence of the taking away of the management of the corporate debtor, which may ultimately result in its corporate death. Also, according to learned counsel for the appellants, if one were to read the definition of “Adjudicating Authority” in Section 5(1) of the Code, together with Sections 408, 424 and 433 of the Companies Act, 2013, it would become clear that proceedings before the National Company Law Tribunal (“NCLT”) arising under the Code would be covered by the Limitation Act via Section 433 of the Companies Act from the very inception or commencement of the Code. According to them, it is important to remember that the Eleventh Schedule to the Code, which made amendments in various Acts, did not introduce the limitation provision of the Companies Act so as to govern the Code as it was unnecessary, as Section 433 applied vide Section 5(1) of the Code read with Section 408 of the Companies Act. In any event, they argued that even on the assumption that the Limitation Act does not apply to the applications referred to above, the principle in State of Madhya Pradesh and Anr. v. Bhailal Bhai and Ors., (1964) 6 SCR 261 has to be followed, and the doctrine of laches applies. In applying this doctrine, the period prescribed by the Limitation Act will be taken to be a guide, and any application filed relating to debts that are beyond what is prescribed under the Limitation Act would be hit by this doctrine in any case.

5. On the other hand, Shri Ashish Dholakia, learned advocate appearing on behalf of some of the respondents, argued, based upon our judgment in Innoventive Industries Ltd. v. ICICI Bank & Anr., (2018) 1 SCC 407, that the Code is a complete Code dealing with insolvency and not debt recovery and that, therefore, the periods of limitation that are stated therein would show that the Limitation Act would not apply. In any case, as has been held by various judgments of this Court, the Limitation Act cannot apply to the NCLT as it is a tribunal and not a court. He cited a number of judgments to point out the difference between amounts that are “due and payable” as opposed to amounts that are “due and recoverable”. According to him, since the language used in Section 3(11) is “due” and in Section 3(12), “due and payable”, it would be clear that a time- barred debt would be subsumed within the said expression as it is not a debt that is “due and recoverable” under the said provision. For this purpose, he relied upon a number of judgments and Sections 25(3), 60 and 61 of the Indian Contract Act, 1872. He also handed up a chart in which, according to him, the following Tribunals, depending upon the particular Act in question, would either be governed or not governed by the Limitation Act as follows:

Tribunal Discharges functions of Whether there is Name a provision for application of Limitation Act?

Telecom Appellate Tribunal under No Disputes Airports Economic Regulatory Settlement Authority of India Act, 2008 and Appellate Tribunal under Yes – Section 60 Appellate Information Technology Act, Tribunal 2000 Appellate Tribunal under No Telecom Regulatory Authority of India Act, 1997 National Appellate Tribunal under No Company Competition Act, 2002 Law Appellate Authority under No** Appellate Insolvency & Bankruptcy Code, Tribunal 2016 Appellate Tribunal under Yes – Section National Tribunal under Companies Act, Yes – Section Law Adjudicating Authority under No** Tribunal Insolvency & Bankruptcy Code, Securities Appellate Tribunal under Yes – Section Appellate Securities & Exchange Board 15W Tribunal of India Act, 1992 Appellate Tribunal under Yes – Section Depositories Act, 1996 23D Appellate Tribunal under Yes – Section Securities Contracts 22D (Regulation) Act, 1956 Appellate Tribunal under No Pension Fund Regulatory and Development Authority Act, **Prior to the Insolvency & Bankruptcy (Second Amendment) Act, Also, according to the learned advocate, incongruous results would obtain if we were to hold that Section 433 of the Companies Act, would apply to provide a period of limitation to the NCLT deciding cases under the Code. He argued that the National Company Law Appellate Tribunal (“NCLAT”) is an appellate tribunal which is common to three statutes, namely, the Competition Act, 2002, the Companies Act, 2013, and the Insolvency and Bankruptcy Code, 2016. Under the Competition Act, no period of limitation is prescribed within which a complaint may be made to the Competition Commission.

11. Given the fact that the “procedure” that would apply to the NCLT would be the procedure contained inter alia in the Limitation Act, it is clear that the NCLT would have to decide applications made to it under the Code in the same manner as it exercises its other jurisdiction under the Companies Act. This being the position in law, it is clear that when various provisions of the Companies Act were amended by the Eleventh Schedule to the Code, it was unnecessary to apply and adapt Section 433 of the Companies Act to the Code, as was done to various other Sections of the Companies Act.