2020 (2) TMI 380

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....ies Act, 2013, having CIN U45400MH1995PTC090372, and represented by its Director, Mr Chandrakant Vadilal Shah, on the basis of a Board Resolution dated 09.01.2018 seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Eskay Bee International Private Limited ("the Corporate Debtor"). 2. The Corporate Debtor is a private company limited by shares incorporated on 03.10.1997 under the Companies Act, 1956, with the Registrar of Companies (RoC), Maharashtra, Mumbai. Its CIN is U55100MH1997PTC111059. Its registered office is at No.304/305, Sahkar Bhuvan, No.340/348, Narshi Natha Street Masjid Bunder, Mumbai 400 009. Therefore, this Bench has jurisdiction to deal with this petition. 3. The present petition was filed before....

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....t is stated to be 24.02.2014. (c) The Operational Creditor issued a Demand Notice dated 09.01.2018 calling upon the Corporate Debtor to make payment of a sum of Rs. 1,44,14,648/- plus interest due from 05.05.2014 (as stated in the Demand Notice at p.14 of the Petition). (d) The Operational Creditor claims that there was no reply to the Demand Notice, hence this petition. 5. The present petition has been filed before this Adjudicating Authority on 15.05.2018. The case of the Corporate Debtor 6. Mr Sangharsh V. Waghmare, Learned Advocate i/b M/s Optima Legal Solutions, Advocates, appeared on behalf of the Corporate Debtor and made his submissions. 7. The Corporate Debtor has filed a reply to the Petition on 19.11....

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....laimed by the Operational Creditor. On these grounds, the EOW rejected the complaints filed by the Operational Creditor (para 5 at pages 2-3 of Written Statement on behalf of the Respondent of the Petition); (d) There is lack of acknowledgement in the Tax invoice. The Operational Creditor has failed to provide any Delivery Challan and Lorry Receipt for delivery of goods to the Corporate Debtor (para 6 at page 3 of Written Statement on behalf of the Respondent of the Petition). 8. Invoices have been placed on record as Exhibit '2' at pp.29-37. The invoices provide for interest in case of delayed payments, to be charged at the rate of 24% per annum. Bank statements are also attached as Exhibit '3' at pages 38. The ....

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.... in terms of each of the invoices, the same would be different and would range between 02.03.2014 and 11.07.2014 as indicated in the Table in the preceding paragraph. Either way, the date of default cannot be taken to be 24.02.2014 as claimed at page 4 of the Petition. 14. Secondly, there is no proof of service of invoices on the Corporate Debtor, either in the form of signatures on the invoices or by way of Delivery Challans or Lorry Receipts annexed to the Petition. 15. Thirdly, there is no proof of service of the Demand Notice on the Corporate Debtor, in the form of postal receipts, acknowledgement cards, tracking reports from the India Post website or hand delivery. 16. Fourthly, in the affidavit in rejoinder, the Operational C....

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....othing placed on record that can correlate the cheques to the transactions mentioned in the present petition. 18. Fifthly, notwithstanding the merits of the matter as discussed above, we must consider the question whether the debt is a time-barred debt. 19. There is no proof of any acknowledgement of liability on the part of the Corporate Debtor or any payment made by the Corporate Debtor within the limitation period that may have the effect of extending the period of limitation within the meaning of section 18 or section 19, as the case may be, of the Limitation Act, 1963. 20. The Hon'ble Supreme Court, in the matter of B.K. Educational Services (P.) Ltd. v. Parag Gupta & Associates [2018] 150 SCL 293, has clearly laid down in....

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....., 11.07.2014, and after applying the principles laid down by the Hon'ble Supreme Court in B.K. Educational Services (P.) Ltd. (supra) which was reiterated in the Sagar Sharma (supra) judgment, the three-year limitation in terms of Article 137 of the Limitation Act, 1963, for filing the present proceeding ended on 10.07.2017, while the present petition was filed on 15.05.2018. 23. In the light of these judgments of the Hon'ble Supreme Court, the decisions of the Hon'ble National Company Law Appellate Tribunal (NCLAT) dated 14.05.2019 in Babulal Vardhaji Gurjar v. Veer Gurjar Aluminium Industries (P.) Ltd. [2019] 154 SCL 44 (NCL - AT) and dated 06.08.2019 in Rajen Amrit Lal Parikh v. Asset Reconstruction Company (India) Ltd. [....