2020 (6) TMI 456

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....nt Interim Resolution Professional. 2. Part-I of the Application sets out about the Operational Creditor from which, it is evident that the Operational Creditor is a Public Limited Company. Part-Il of the Application gives all the particulars of the Corporate Debtor from which it is evident that the Corporate Debtor is a Private Limited Company with CIN:U1712TN2010PTC077454 - which was incorporated on 23.09.2010 and that its Authorized share capital and paid up capital is Rs. 2,00,00,000/- and Rs. 2,00,00,000/- respectively. The Registered Office of the Corporate Debtor as per the Application is stated to be situated at No.9, Amutham Apartment, Bharathi Nagar, Karur, Tamil Nadu - 639 002. 3. Part-Ill of the Application shows that the Operational Creditor has proposed the name of one Mr. Kannan Sambasivam as the Interim Resolution Professional. From Part-IV of the Application, it is seen that a sum of Rs. 38,37,972/- inclusive of interest at the rate of 24% p.a. is being claimed as total debt which is due and payable by the Corporate Debtor to the Operational Creditor. 4. Part V of the Application describes the particulars of the documents, records and evidence of default o....

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.... not effecting the payments as against the invoices raised. It was further submitted that the account is a running account and the Corporate Debtor has paid only a part of the consideration against the invoice on various dates as reflected in the Bank Statement of the Operational Creditor and the ledger account of the Corporate Debtor maintained in the books of the Operational Creditor. It was stated that all the payments made against the delivery Of the goods have been adjusted towards the invoices in chronological order starting from the first invoice and despite several reminder both written and oral, the Corporate Debtor has failed to discharge the amount which is due and payable to the Operational Creditor. 7. The Learned Counsel for the Operational Creditor submitted that the Operational Creditor issued a Demand Notice to the Corporate Debtor on 19.03.2019 and after receipt of the said Demand Notice, on 25.03.2019 the Corporate Debtor undertook to settle the amount Shown as outstanding in the Demand Notice, it has also been alleged that the Corporate Debtor has deposited a sum of Rs. 1,00,000/- vide Bank Transfer (IMPS) on 31.05.2019, which is reflected in the Bank stateme....

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.....2016, then the Application which was filed by the Operational Creditor before this Tribunal on 24.09.2019 is sufficiently well within the prescribed period of Limitation. Further, the conclusion of this Tribunal that this Application is well within the period of limitation, is irrespective of the fact whether the Corporate Debtor has paid a sum of Rs. 1,00,000/- to the Operational Creditor or not. 12. The Learned Counsel for the Corporate Debtor contended that Section 19 of Limitation Act, 1963 is not applicable to the Application filed under Section 9 of the IBC, 2016. However, Section 238A of the IBC, 2016 states that the Limitation Act, 1963 shall, as far as may be, apply to the proceedings before the Adjudicating Authority. Further; Section 29(2) of the Limitation Act, 1963 reads as follows; 29 (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions Of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any spe....

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.... the Application being admitted under the provisions of Insolvency and Bankruptcy Code, 2016 read with Application to Adjudicating Authority Rules, 2016, the moratorium as envisaged under the provisions of Section 14(1) and as extracted hereunder shall follow in relation to the Corporate Debtor: a. The institution of suits or continuation of pending suits or proceedings against the respondent including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority ; b. Transferring, encumbering, alienating or disposing of by the respondent any of its assets or any legal right or beneficial interest therein; c. Any action to foreclose, recover or enforce any security interest created by the respondent in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; d. The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the respondent. 17. However, during the pendency of the moratorium period in terms of Section 14(2) (2A) and 14(3) as extracted he....