2019 (11) TMI 1519 - Tri - IBC

Tribunal Rejects Insolvency Petition, Cites Debt Recovery Motive and Limitation Period Issues Under IBC 2016.

Cotmac Industrial Trading Private Limited Versus Karthik Roofings & Structurals Private Limited

The Tribunal dismissed the petition for initiating Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor, citing inadequate ... Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Time Limitation - HELD THAT:- The pleadings of the petitioner clearly show that the instant petition is filed in order to recover alleged outstanding rather to initiate CIRP, which is object of Code. It is settled position of law that provisions of Code cannot be invoked for money recovery. So far as the limitation is concerned, it is a settled position of law that provisions of Limitation Act would be applicable to the provisions of Code. The Hon'ble Supreme Court in the case of B.K. Educational Services Put. Ltd. Vs. Parag Gupta and Associates [2018 (10) TMI 777 - SUPREME COURT], has, inter alia, held that provisions of Limitation Act will apply to proceedings or appeals before NCLT/NCLAT. Section 238A of the Code make provisions of Limitation Act would apply to proceedings under the Code. The Petitioner failed to explain as to how the instant Company Petition is within limitation since the alleged debt and default occurred as early in the year, 2014. The instant case is not a fit case to admit and it is liable to be dismissed by granting liberty to the parties to settle the issue in the interest of business relationship - Application dismissed. Issues Involved:Initiation of Corporate Insolvency Resolution Process under the IBC, 2016 based on default in payment by the Corporate Debtor.Detailed Analysis:Issue 1: Default in Payment and Initiation of CIRPThe case involved a petition filed by the Operational Creditor seeking to initiate Corporate Insolvency Resolution Process against the Corporate Debtor for defaulting on payments totaling &8377; 03,09,068 along with interest. The Operational Creditor had supplied products to the Corporate Debtor under various invoices, with payment terms requiring settlement within 30 days. Despite reminders and a demand notice, the Corporate Debtor failed to make timely payments, leading to a total outstanding amount of &8377; 2,25,000. The Operational Creditor contended that the debt was not disputed, and the Corporate Debtor did not respond to the demand notice, justifying the initiation of CIRP. The Finance Manager of the Corporate Debtor argued that the demand notice was issued after a significant delay and expressed concerns about the impact of CIRP on the company's employees.Issue 2: Legal Proceedings and LimitationThe Tribunal noted that the Operational Creditor had failed to initiate legal proceedings until the demand notice was issued, which included an interest component. However, the purchase orders and invoices did not mention any interest element. The Tribunal observed that the petition seemed more focused on recovering the outstanding amount rather than genuinely initiating CIRP, which goes against the objective of the Insolvency and Bankruptcy Code. Additionally, the Tribunal highlighted the applicability of the Limitation Act to proceedings under the Code, emphasizing that the Company Petition should be within the limitation period, which was not adequately explained by the Petitioner in this case.Conclusion:After considering the arguments and facts presented by both parties, the Tribunal concluded that the case was not suitable for admission and dismissed the petition. The parties were granted liberty to settle the issue in the interest of their business relationship, especially since the Respondent had made a partial payment. The order did not impose any costs on either party, allowing them to resolve the matter amicably despite the dismissal of the petition.