2021 (2) TMI 146 - Tri - IBC

Insolvency Application Rejected: Barred by Limitation & Pre-existing Dispute; Creditor Non-compliance Cited.

The Tribunal dismissed the application under Section 9 of the IBC, 2016, citing it was barred by limitation, as it was filed beyond the three-year period ... Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt or not - debt due and payable or not - time limitation - pre-existing dispute between the parties or not. Time Limitation - HELD THAT:- This Adjudicating Authority observes that the instant Application under Section 9 of IB Code, 2016 was filed on 18.11.2019, whereas the last date of invoice is 09.02.2015 and the date of default as mentioned in Part-IV of the Form - 5 in the instant Application is also 09.02.2015, which is much beyond the period of Limitation of three years - Further Hon’ble Supreme Court in Gaurav Hargovindbhai Dave v. Asset Reconstruction Company (India) Ltd. [2019 (9) TMI 1019 - SUPREME COURT] have categorically held that the proceedings under section 7 of the IBC are “an application” and not “suits”; thus they would fall within the residuary article 137 of the Limitation Act and the right to apply will arise from the date of default. It is not disputed that the instant application has been filed much after the completion of the limitation period of three years reckoned from the “date of default” as stated in the application itself. Further the Applicant herein has also failed to place on record any other document which either reflects existence of circumstances covered under Section 5 of the Limitation Act for condonation of delay or circumstances covered in Section 18 of the Limitation Act allowing extension of limitation period. Thus the applicant has not been able to prove that the instant Application is within time and not barred by limitation - this Adjudicating Authority is of the view that the Application is liable to be dismissed on the sole ground of limitation as all the invoices which are subject matter of the instant Application are beyond the time period of three years. Pre-existing dispute or not - HELD THAT:- There exists a pre-existing dispute between the parties, which was raised much prior to the issuance of demand notice u/s 8 and the same is evident from the email dated 28.04.2015 - it is evident that there exists a pre-existing dispute between the parties which was actually raised much prior to the issuance of demand notice. The instant Application U/s 9 of IB Code, 2016 is liable to be rejected on the ground of limitation and also in view of the pre-existing dispute between the parties - Petition rejected. Issues Involved:1. Limitation period for filing the application.2. Pre-existing dispute between the parties.3. Amount due and payable by the Corporate Debtor.4. Compliance with terms of the contract.Issue-wise Detailed Analysis:1. Limitation Period for Filing the Application:The application under Section 9 of the Insolvency and Bankruptcy Code (IBC), 2016, was filed on 18.11.2019. The last date of the invoice was 09.02.2015, and the date of default mentioned was also 09.02.2015. The Tribunal noted that the application was filed beyond the three-year limitation period prescribed under Article 137 of the Limitation Act, 1963. The Tribunal cited the Supreme Court's ruling in B.K. Educational Services Private Limited v. Parag Gupta and Associates, which clarified that the limitation period starts from the date of default. The Tribunal concluded that the applicant failed to provide any document justifying the delay under Section 5 or Section 18 of the Limitation Act. Therefore, the application was barred by limitation.2. Pre-existing Dispute Between the Parties:The Tribunal observed that there was a pre-existing dispute between the parties, which was evident from an email dated 28.04.2015, where the Corporate Debtor expressed dissatisfaction with the Operational Creditor's performance and mentioned hiring a third party to complete the work. This dispute was raised before the issuance of the demand notice under Section 8 of the IBC. The Tribunal relied on the Supreme Court's decision in Mobilox Innovations Pvt. Ltd. v. Kirusa Software Pvt. Ltd., which emphasized that the existence of a pre-existing dispute is a valid ground for rejecting an insolvency application.3. Amount Due and Payable by the Corporate Debtor:The Operational Creditor claimed an outstanding amount of Rs. 11,32,839/-, including the amount payable against the issuance of 'C' Forms. The Corporate Debtor contended that it had already paid more than the claimed amount, including payments for fabrication works. The Tribunal noted discrepancies in the amounts claimed by the Operational Creditor at different stages and concluded that the claim was not substantiated with clear evidence.4. Compliance with Terms of the Contract:The Corporate Debtor argued that the Operational Creditor failed to complete the work as per the agreed timelines and specifications, leading to additional costs for hiring a third party. The Tribunal found that the Operational Creditor did not adequately address the allegations of non-compliance with the contract terms. The Tribunal also noted that the Corporate Debtor had raised concerns about the quality and completion of work in communications dated 28.04.2015 and subsequent emails.Conclusion:The Tribunal dismissed the application on the grounds of being barred by limitation and the existence of a pre-existing dispute. The Tribunal concluded that the Operational Creditor failed to prove that the application was filed within the limitation period and that there was no pre-existing dispute. Consequently, CP(IB) No. 748/09/HDB/2019 was rejected with no order as to costs.