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TaxTMI 
TaxTMI 
2020 (4) TMI 504
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.... The prayer made is to decide the maintainability and limitation of CP/1305/IB/2015 as a preliminary issue before proceeding with the adjudication of the application. 3. A perusal of Part I of the Application shows that the Petitioner is a Limited Company. In relation to the Corporate Debtor, the particulars of the Corporate Debtor is given in Part-II from which it is seen that the date of incorporation of the Corporate Debtor is given as 15th November 1995 and the Authorized Share Capital of the Company is Rs. 25,00,00,000/- and Paid-up Capital is Rs. 22,37,40,592/-. The Registered office of the Corporate Debtor is situated at No. 443, Anna Salai, Teynampet, Chennai, Tamil Nadu - 600 018. 4. In relation to Part III, no Interim Resolution Professional (IRP) has been named by the Operational Creditor. Part IV details the transaction between the Operational Creditor and the Corporate Debtor leading to the debt and default and the amount which is being claimed is Rs. 1,52,74,938/- including interest upto 30-4-2018. 5. Part V in the prescribed Application discloses the documents based on which the claim is sought to be substantiated by the Operational Creditor as against the C....
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....on 1-5-2018 which was received by the Corporate Debtor on 9-5-2018, to which the Corporate Debtor has sent a reply on 17-5-2018 whereby they admitted their liability and committed to pay a sum of Rs. 5 Lakhs per month commencing from June, 2018 together with interest @ 9% as per the terms of award passed by the Arbitrator. The said proposal was rejected by the Operational Creditor by their letter dated 28-5-2018 and a request was made to settle the entire amount along with interest within 30-9-2018. In reply, the Corporate Debtor by its letter dated 20-6-2018, accepted its liability and promised to settle the entire amount within the above said date and since the Corporate Debtor has not paid any amount, the Operational Creditor has filed this present petition on 30-10-2018. 10. The Corporate Debtor has filed its preliminary objections on 14-3-2019 wherein it has been stated that the Operational Creditor has initiated Execution Proceedings against the Corporate Debtor in E.P. No. 151 of 2018 before the Hon'ble High Court of Madras and the same is pending and simultaneously the Operational Creditor has also initiated the present proceedings for the enforcement of the award. I....
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.... and Conciliation Act, 2016 before the Hon'ble High Court of Madras in O.P. No. 549 of 2019 and the said matter came up for admission on 1-8-2019 and in the said circumstances, in view of the Judgment rendered by the Hon'ble Supreme Court in Vijay Nirman Co. (P.) Ltd.(supra), the instant CP/1305/IB/2018 is not maintainable. 15. However, we are unable to agree with the submission made by the Ld. Counsel for the Corporate Debtor in view of the fact that the said O.P. No. 549 of 2019 was filed before the Hon'ble High Court of Madras only after filing of CP/1305/IB/2018. In para 11 of the Vijay Nirman Co. (P.) Ltd. (supra), the Supreme Court has laid down the criteria to be followed by the Adjudicating Authority while examining an application under section 9 of the IBC, 2016 and the same is extracted hereunder. 11. The Adjudicating Authority, therefore when examining an application under section 9 of the Act, will have to determine the following :- (i) Whether there is an "operational debt" as define exceeding Rs. 1 Lakh? (See section 4 of the Act) (ii) Whether the documentary evidence furnished with the application shows that the aforesaid deb....
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....ling of CP/1305/IB/2018, which cannot be construed as a "pre-existing" dispute. The Corporate Debtor hence cannot be allowed to approbate and reprobate in relation to the claim for sake of its own convenience. 19. It has been brought to the notice of this Tribunal that after the Orders were reserved, the Corporate Debtor has filed a Memo Sr. No. 6175 on 28-11-2019 seeking to reopen the CP/1305/IB/2018 in view of the wrong submission made by the Counsel for the Operational Creditor that no stay has been granted. However, a perusal of the said memo posits that the Corporate Debtor is trying to harp on the same facts as stated in the counter, and in view of the discussions made supra, the said memo stands rejected. 20. From the documents produced on record, it is evident that the claim falls within the period of limitation of 3 years and is not barred by limitation. The claim amount as made in the petition is also in excess of Rs. 1,00,000/- being the statutory minimum amount fixed under section 4 of the IBC, 2016 for approaching this Tribunal by the creditors, in the instant case by an Operational Creditor. 21. By taking into consideration the facts mentioned supra, we are i....