2017 (11) TMI 698

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....y of Respondent situated at Neemrana, Rajasthan and the value of purchase order being in a sum of Rs. 1.18 crores. (ii) The petitioner avers that the erection & commissioning of the Solar PV Plant was completed on 28.12.2011 and that out of the sum of Rs. 1.18 crores, being the total amount payable by the respondent, a balance sum of Rs. 20,50,385/- remains due from 29th Nov, 2012 and since then, the amount has remained in default and no payment has been received from the respondent/Corporate Debtor. (iii) In view of the non-payment, it is claimed by the petitioner that a demand notice U/s. 8 of IBC Code, 2016 read with attendant rules was sent to the Corporate Debtor on 20.6.2017 calling for the payment of amount in default. However, instead of making payment, it is stated by the petitioner that Respondent sent a reply dated 7.7.2017 through its Counsel. In view of the non-payment of the amount in default, it is averred by the petitioner that an application as required to be made under the provisions of IBC, 2016 for initiating Corporate Insolvency Resolution Process (CIRP) by an Operational Creditor has been made against the Corporate Debtor. (iv) In su....

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....o efforts had been taken by the Creditor/petitioner to put the same in order which deprived the respondent Company from obtaining subsidy amount in full, due to which, the Respondent/Debtor is unable to clear the amount as claimed by the petitioner/applicant. (d) On the above basis, it is claimed that there is a pre-existence of dispute even prior to the sending of notice U/s. 8 of IBC Code, 2016 , being the notice of demand from the applicant/petitioner to the respondent Company. (e) In addition to the above, by way of preliminary objections, for non - compliance with the procedural aspects on the part of the petitioner, it is pointed out that the notice of demand, as issued by the petitioner has defects as the same has been issued by an Advocate who has not been duly authorized to issue such a notice on behalf of the petitioner and in support of the contention, the respondent has relied upon the decision of the Hon'ble NCLAT rendered in Uttam Galva Steels Limited v. DF Deutsche Forfait AG Anr. (f) Further, it is also pointed out that the provisions of Section 9(3)(b) of IBC, 2016 has not been complied with as in terms of said Section the applicant was r....

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....m of Rs. 20,50,385/- being the amount in default as claimed in the present Petition has been demanded. The above said notice for winding up has been replied to in detail by the respondent Company on 8.6.2017 putting forth the fact of denial of government subsidy to the extent of 50% as per Government team investigation through Rajasthan Renewable Energy Corporation Limited, providing Central Financial Assistance. 5. It is also seen from the E-mail dated 03.5.2013 filed along with the annexures annexed as Annexure-C (Colly) to the typed set of documents filed by the respondent that as early as in the year 2013, it has been brought to the notice of the petitioner that the respondent Company is failing to obtain the subsidy in view of the poor power generation due to the fault of inverter as the investigation has raised a query in relation to the power generation. However, subsequent to the receipt of e-mail, the petitioner/Creditor should have either rectified the defects as alleged or should have denied the claim of the respondent Company in relation to the defect and proceeded to take steps for the recovery of amounts due to it. However, there seems to have been no action on the....

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....ess. If there is a debt which includes interest and there is default of debt and having continuous course of action, the argument that the claim of money by Respondent is barred by Limitation cannot be accepted". 8. In relation to the aspect of limitation, the Hon'ble Supreme Court in Civil Appeal No.1074 of 2017 filed against the above judgment of Hon'ble NCLAT in Neelkanth Township & Construction (P.) Ltd. while dismissing the appeal, in relation to the question whether the Limitation Act would apply to IBC proceeding has chosen to keep the same open. Since the Hon'ble Supreme Court has chosen to keep the issue open and as the Hon'ble NCLAT has categorically held that the law of Limitation Act, 1963 is not applicable to IBC, 2016, this Tribunal kowtowing to the judgment of the Hon'ble NCLAT refrains from discussing any further on the aspect of Limitation. 9. However, the non-applicability of Limitation Act, 1963 in view of the above cited judgment of Hon'ble NCLAT will not absolve the petitioner from accounting for delay and laches as the Hon'ble NCLAT in the case of Praveen Shankaralyam v. Elan Professional Appliances (P.) Ltd. and others in Company Appeal (AT) No.34 of 20....