TaxTMI 
TaxTMI 
2018 (8) TMI 446
X X X X Extracts X X X X
X X X X Extracts X X X X
....secondary Vibrating Screen, Ring Granulator type Crusher and Vibrating Grizzly (Screen) placed by CD supplies were effected by the OC to the complete satisfaction of the CD and that invoices were raised between December, 2010 to 2011, as detailed in Part-IV of the application. ii. At the time of raising purchase orders and awaiting contract from CD to OC in relation to the terms of payment for the supply of materials it was agreed by the CD that initially an advance of 10% will be paid and that up on delivery a further 80% of the amount due will be paid and that the balance 10% being the retention money will be come payable on commissioning or after 18 months after dispatch. OC avers that supplies under 14 invoices were made consequent to the above promise by the CD. iii. Thus, OC fulfilled its obligations by supplying materials, as stipulated under the purchase orders and that the same was also accepted based on the complete satisfaction of the supplies made by the OC to the CD vide email dated 21.2.2011 and the cheques were also issued by the CD between March, 2011 and September, 2011 in acknowledgement of the debts due. However, the same got dishonored in the yea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tally 3 purchase orders were placed and not two as claimed and as averred by the OC and for whatever reasons known to the OC while purchase orders dated 29.03.2010 and 19.05.2010 has been disclosed, the purchase order dated 13.10.2010 has not been disclosed and which it is stated has also been annexed as Annexure 2 of the reply typed set. In this regard, it is also contended by the CD that complete and true statement of accounts in relation to all the three purchase orders have not been placed on record by the OC while filing this application and thereby bring to the notice of this Tribunal a correct and true picture of the transactions between the parties. (iii) The CD in its reply also has projected that there has been a pre- existing dispute between the CD and the OC in relation to defective supplies and despite follow up by CD with the OC to replace or make up for the wrong supplies made by it and because of which the CD was forced to suffer huge losses. Thus even payments which were intimated to be made by way of DDs to the OC was forced to be withdrawn as the OC did not adhere to the commitments in relation to the orders placed on it and the DDs were forced to be canc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h are only mere allegations and the losses which is claimed to have been suffered due to it is also not true. In this connection, it is also pointed out that in fact CD was satisfied with the supplies made by the OC in all respects and that towards the same Material Despatch Clearance Certificate (MDCC) had been issued by the CD after due inspection of all the goods and material in question. In relation to the debt, it is the contention of the OC that these are false and fabricated allegations and that the OC has never received any debit notes as contended by the CD. In this connection. It is also pointed that the postal receipts which have been annexed and forming part of the Annexures discloses a address which have no nexus or connection with the OC. With respect to limitation it is averred in the rejoinder that in view of an application having been filed under Section 313(5) of the Cr. PC 1973 by the CD praying for the questionnaire to be supplied and directions to file written statement in relation to section 138(b) of the Negotiable Instrument Act of 1881 being initiated before the Learned 3rd Metropolitan Magistrate at Calcutta in the instant proceedings a fresh period of lim....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n Company Appeal (AT) (Insolvency) No 193 of 2017 wherein the Hon'ble NCLAT has considered whether the claim of dues without explaining long delay, normally should be entertained or not for triggering 'Corporate Insolvency Resolution Process' under sections 7 and 9 of the I&B Code and hence it cannot be considered that the applicability of Limitation Act or the doctrine of limitation and prescription has been attained finality more so when the said question is pending before the Hon'ble Supreme Court. 6. We have carefully considered the rival pleadings as well as rival submissions espoused by the Ld. Counsels for the parties. In relation to the aspect of limitation which is basically a mixed question of law and facts, it is no doubt seen that the OC had raised invoices as early as December 2010 up and until February, 2011 by way of two invoices dated 30.12.2010 and dated 28.02.2011. Subsequent to the same the OC for a period of more than 6 years apart from initiating proceedings before the appropriate criminal court for dishonor of cheques that too way back in the year 2012, has not initiated any civil proceedings for the recovery of dues allegedly owed to it. Even....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d hence the application is not maintainable. The e-mail communication sent on June 11, 2012 by the Corporate Debtor to the Operational Creditor also establishes that there were pre-existing dispute raised by CD in relation to defects in the goods supplied by the OC as the contents of the e-mail reproduced hereunder discloses, i.e. "Subject: Monnet CHP Project (P-536) Capacity and rating of Flip Plot Screens. Dear Mr. Sanjay Vashisht/Mr. Raju Patel, We have been trying to contact you on phone for last many days in connection with the defects found in the vibrating screens supplied by you for our sites. The flip-flop screen supplied by you at our Monnet CHP site is under capacity machine and is not as per the PO. The vibrating screen supplied at Vandana Vidhyut - Korba Site is a wrongly oriented machine. The material supplied at our JSPL site-Angul is not as per the inspection comments given by the inspecting agency. The compliance of inspection observations had not been properly adhered to. On top of it is regretted to say that neither you are sending your service engineers for rectification of defects nor you have bothered to listen to the requests sent from site as well as f....