2021 (11) TMI 249 - Tri - Insolvency and Bankruptcy

Dismissal of CIRP Petition Due to Defective Notice and Time-Barred Claims

The court dismissed the petition for the initiation of Corporate Insolvency Resolution Process under section 9 of the Insolvency & Bankruptcy Code, ... Maintainability of application - Initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - service of demand notice - HELD THAT:- The Invoices pertain to the period 2013-14. Further, the Operational Creditor has issued demand notice u/s. 8 of the Code for the operational debt on 16.10.2019 - The last payment which has been received from the Corporate Debtor is on 04.04.2014. However, no acknowledgment anywhere on record has been issued by the Respondent regarding the payment due to the Petitioner. This Bench also notes that no reply to the demand notice was given by the Respondent. The last date of any part payment/acknowledgment is 04.04.2014 and the Petition has been filed on 16.02.2021 i.e. after more than six years from the date of any part payment/acknowledgment. Therefore, the Petition is heavily time-barred in terms of relevant provisions of the Limitation Act, 1963. Petition dismissed. Issues:- Initiation of Corporate Insolvency Resolution Process under section 9 of Insolvency & Bankruptcy Code, 2016- Defective Demand Notice and Petition by the Operational Creditor- Barred by the law of limitation- Clubbing of separate contracts in a single petition- Claim of interest without express agreementInitiation of Corporate Insolvency Resolution Process:The petition was filed by the Operational Creditor against the Corporate Debtor for a total default amount under section 9 of the Insolvency & Bankruptcy Code, 2016. The Operational Creditor claimed a total default amount with interest and submitted that the Corporate Debtor failed to clear its dues despite multiple requests and a demand notice issued under Section 8 of the Code. The cause of action was considered to have arisen on the date of issuing the Demand Notice. The Corporate Debtor argued against the completeness and validity of the Demand Notice and the Petition, claiming that the provisions of Section 8 were not followed.Defective Demand Notice and Petition:The Corporate Debtor contended that the Demand Notice and Petition were defective and incomplete, highlighting issues with the serving of the Demand Notice and the lack of compliance with the relevant rules. The Corporate Debtor raised concerns about the date of default not being mentioned in the Petition, the Petitioner clubbing separate contracts together in a single petition, and the absence of an express agreement regarding the payment of interest. Additionally, the Corporate Debtor argued that the Petition was barred by the law of limitation as it was filed after a significant period from the last part payment.Barred by the Law of Limitation:The judgment noted that the Petition was time-barred under the provisions of the Limitation Act, 1963, as it was filed after more than six years from the last part payment or acknowledgment of debt by the Corporate Debtor. The lack of any acknowledgment of debt or part payment by the Corporate Debtor for an extended period was a crucial factor in determining the Petition as heavily time-barred.Clubbing of Separate Contracts:The Corporate Debtor argued that the Petitioner had combined multiple separate contracts in a single petition, which was not permissible under the law. The Corporate Debtor emphasized that the contracts had different amounts and dates of default, making it inappropriate to club them together in one petition. This issue raised questions about the validity and consolidation of multiple agreements in insolvency proceedings.Claim of Interest without Express Agreement:The Corporate Debtor challenged the claim of interest by the Petitioner, stating that there was no express agreement between the parties regarding the payment of interest. The absence of a clear agreement on interest terms led to the Corporate Debtor asserting that the claim for interest was unwarranted. Ultimately, the judgment dismissed the Petition on the grounds of being heavily time-barred, in accordance with the provisions of the Limitation Act, 1963.