TaxTMI 
TaxTMI 
2019 (3) TMI 195
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....ection 9 of the Insolvency & Bankruptcy Code 2016 (in short, 'I&B Code, 2016') r/w Rule 6 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The prayer made is to admit the Application, to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor, declare moratorium and appoint Interim Resolution Professional (IRP). 2. Heard the Counsels for the Operational Creditor and Corporate Debtor, and perused the record placed on file. 3. The Operational Creditor has claimed an amount of Rs. 65,92,767/- as outstanding which as per the Operational Creditor, the Corporate Debtor has failed to pay. In support of its claim a Computation Table is placed at page 16 of the typed set file....
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.... against the Corporate Debtor and the same stood payable. 5. The Corporate Debtor is stated to have executed five Hundies in relation to the transactions, out of which two Hundies have been honoured and the remaining three Hundies are still payable as on date, amounting to Rs. 33,55,543/-. It has also been stated in the Application that the Corporate Debtor vide Communications dated 04.03.2014, 26.04.2014 and 18.11.2015 have acknowledged the debt and promised to pay the sum due. It has been stated that the Operational Creditor has apart from e-mail reminders, sent legal notices dated 18.07.2016, 17.07.2017 and finally notice under I&B Code, 2016 dated 26.12.2017. 6. The Corporate Debtor has filed the Reply Statement wherein it has bee....
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....leged claims and demand made by the Operational Creditor is unsustainable and is not maintainable as it is patently barred by the law of limitation. 9. It has been stated in the Reply Statement that even assuming the fact that the last date of payment made by the Corporate Debtor was 25.06.2014, the Operational Creditor ought to have initiated the legal proceedings against the Corporate Debtor for the alleged sum by 26.06.2017. It has been asserted in the Reply Statement that the alleged claim made by the Operational Creditor being time barred is expressly admitted by the Operational Creditor in the Computation Table attached with the Application which mentions the last date of Invoice to be 30.09.2013. The Corporate Debtor in its Reply ....
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....ed under Para 13 at Table 'B'. 12. During the course of hearing, the Counsel for the Corproate Debtor has submitted that the amount of the Invoices on the basis of which the Operational Creditor has made the claim, has already been paid and for the Invoices detail of which is given under Para 13 at Table 'A' i.e., Invoice Nos. 412 to 417 and 424 to 430, which involve the total amount as Rs. 22,17,591/-. The same has been paid in cash against Cash Payment Advices, the original of which are placed along with an Affidavit filed by one of the Directors of the Corporate Debtor viz., Mr. Shionala Sadhu, which are contained at pages 4 to 8, and at page 9, Confirmation of Account Balance is given as 'nil' by the Operation....
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.... an Affidavit to that effect. Therefore, the matter was posted on 08.11.2018 for making final submissions. 14. It is worthwhile to note that the Cash Payment Advices are stated to have been signed by the Operational Creditor confirming the payment of the Invoices and the signatures are disputed by the Operational Creditor but the Operational Creditor has refused to send the original documents to the Handwriting Expert to compare the same with the admitted signatures of the Operational Creditor. Therefore, a strong presumption has been drawn against the Operational Creditor. 15. In the light of the pleadings of the parties, two issues are required to be framed which are as follows: i) Whether the Application filed by the Opera....
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....tials for being admitted as genuine because neither it has been sent on the letterhead of the Corporate Debtor nor was signed by its Managing Director. In the circumstances, the last date of balance confirmation is being treated as 26.04.2014 and the Application under Section 9 has been filed on 21.02.2018 which is being filed after the expiry of the period of limitation and the same is barred by the law of limitation. Therefore, this issue is decided against the Operational Creditor and in favour of the Corporate Debtor. In this regard, reliance is placed on the judgement of Hon'ble Supreme Court given in B.K. Educational Services (P.) Ltd. (supra)wherein it has been held that the provisions of the Limitation Act are inbuilt in the I&B....