TaxTMI 
TaxTMI 
2019 (10) TMI 622
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....- vide invoice no. 10000793 dated 17.10.2015. 2. Brief facts of the case, as mentioned in the Company Petition, are as follows: (1) M/s. Amtech Electronics (India) Limited ('Petitioner/Operational Creditor') is a Company incorporated and having its address at E-6, G I D C Electronic Zone, Gandhinagar, Gujarat - 382 028. The Company inter alia is engaged in the business of manufacturing industrial electronics product and has engaged in business with M/s Ecolibrium Energy Private Limited for supply of one AXPERT-EAY ENGINEERED SYSTEM and one AXPERT-VT 240S ENGINEERED SYSTEM. (2) M/s. Ecolibrium Energy Private Limited ('Respondent/Corporate Debtor') is a Company incorporated on 04.11.2008 under the provisions of Companies Act, 1956 with CIN U40108KA2008PTC048176 and having its registered office at F-101, Wilson Manor, 13th Cross, Wilson Garden, Bengaluru - 560 027. (3) The Authorised Share Capital of the Corporate Debtor is Rs. 11,52,00,000/- (Rupees Eleven Crore Fifty Two Lakh Only) and the Paid-up Share Capital of the Company is Rs. 11,32,51,300/- (Rupees Eleven Crore Thirty Two Lakhs Fifty One Thousand and Three Hundred Only). (4) The Operatio....
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....ate Debtor. Further, the Operational Creditor had also promised and committed to fix all concerns pertaining to the products which were already supplied. (5) The Operational Creditor inspite of repeated assurances of supplying quality products and maintaining excellent after-sale services miserably failed to keep its commitments. The Corporate Debtor then expressed its dissatisfaction/displeasure and raised complaints vide e-mails dated 12.10.2015 and 13.10.2015, pertaining to the negative feedback of poor quality of products and services and also about the false commitments/assurances provided by the Operational Creditor. The officers of the Corporate Debtor also requested for a meeting with the top management of the Operational Creditor for discussing its concerns. (6) The Corporate Debtor in the aforesaid emails, inter alia, bought the following to the notice of the Operational Creditor: a. The Operational Creditor was facing issues pertaining to delivery time, as a result of which the Corporate Debtor was liable to pay late delivery charges to its clients and the working capital of the Corporate Debtor was diminishing due to it. b. &nbs....
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....ed to inform their bankers to stop payment of the post dated cheque. (11) The Operational Creditor with a malafide intention to make unjust enrichment deposited the aforesaid cheque with the bankers and accordingly issued a legal notice under Section 138 of the Negotiable Instruments Act to the Corporate Debtor. The Corporate Debtor replied to the said Legal notice by denying the outstanding debt. The Operational Creditor then filed a Private Complaint bearing Criminal Complaint No. 1522 of 2016, pending before the Learned 3rd Additional Senior Civil Judge and Additional CJM, Gandhinagar, Gujarat, against the Corporate Debtor under Section 138 of the Negotiable Instruments Act. The Corporate Debtor approached the Hon'ble High Court of Gujarat, at Ahmedabad in Special Criminal (Quashing) No. 3564 of 2016, against the Operational Creditor for quashing the aforesaid proceedings, pending before the trial court and the Hon'ble High Court of Gujarat, at Ahmedabad granted stay in the said matter. (12) The Corporate Debtor had procured in total 78 number of Drives from the Operational Creditor till date and the total value of the said Drives with applicable taxes was amou....
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.... 9. The Hon'ble Supreme Court in B.K. Educational Services (P.) Ltd. Vs. Parag Gupta & Associates held that "It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. "The right to sue", therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application." 10. Therefore, in light of the law stated above, we note that the Petitioner has filed the instant Petition on 07.01.2019 which is more than 3 (Three) years from the date of default. Further, the Petitioner has neither prayed for condonation of delay under Section 5 of the Limitation Act, 1963 nor satisfied this Tribunal that the Petitioner had sufficient cause for not making the application within such period. 11. Further, on perusing the facts of the instant petition filed under Sect....