TaxTMI 
TaxTMI 
2020 (7) TMI 235
X X X X Extracts X X X X
X X X X Extracts X X X X
....ptcy Code, 2016, r/w Rule 6 of Insolvency & Bankruptcy (Application to the Adjudicating Authority) Rules, 2016, seeking admission of the Petition, initiation of Corporate Insolvency Resolution Process, granting moratorium and appointment of Interim Resolution Professional as prescribed under the Code and Rules thereon. 2. The averments of the petition filed by the Petitioner/Operational Creditor in brief are described hereunder: i. It is averred that M/s. Enexio Power Cooling Solutions India Private Limited/Operational Creditor and MSR Mega Bio Power Limited/Corporate Debtor had entered into a contract dated 18-12-2010 for design, engineering, manufacturing, procuring, testing and supplying 1 No. Air Cooled Condenser with all auxiliaries in relation to 1 x 7.5 MW Power Project set up by MSR Bio Power Limited/Corporate Debtor situated at Warangal, Telangana State, India, at a total contract price of Rs. 3,75,00,000/-. ii. It is averred that project commenced during February, 2011 and raised various Debit Notes/Invoices against the Corporate Debtor according to the works done. As per the Contract, the payment schedule is mentioned as follows: S.No. Descript....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... but has also been made with an ulterior motive to cause irrevocable damage to the Corporate Debtor company. ii. It is averred that no money is due and payable to the Operational Creditor and even if the Operational Creditor has a claim, the same is hopelessly time barred and therefore the instant Section 9 petition filed by the Operational Creditor cannot stand since the invoices alleged to be unpaid were raised by the Operational Creditor in the year 2012, the date of invoice was 20-7-2012 and the default alleged to have taken place on 19-8-2012. It is also averred that the claim now being made by the Operational Creditor clearly arose in the year 2012 and therefore the claim is clearly beyond limitation and is hopelessly time barred. iii. It is averred that various mails on which the Operational Creditor is relying on cannot be claimed to have extended the period of limitation as these mails were sent by the Operational Creditor and not by the Corporate Debtor. Since these mails relate to for the period from 2011 to 2015 which would not help the case of Operational Creditor as even the extended period of limitation would have expired in February, 2018. As such,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or at pages 82 & 83 show that they had received an amount of Rs. 2,39,00,000/- and Rs. 1,37,60,000/- respectively. Thus, the total amount received Rs. 3,76,60,000/- which is in excess of the contracted price of Rs. 3,75,00,000/-. xi. It is averred that the Operational Creditor had caused an inordinate delay in supply of the material contracted, complete the erection of the material and commission the plant and incurred additional expenditure for taking the third-party contractors to supply the material, complete the pending works and commission the plant. 4. Rejoinder filed by Operational Creditor and the averments therein, in brief are as follows: i. It is averred that the Operational Creditor has produced all the proofs and evidence to support the claims but the Corporate Debtor miserably failed to produce any cogent evidence to prove that it is not liable to make the payment to the Operational Creditor. Hence, the allegations that the claims are unwarranted and unjustified are false. ii. It is averred that the Corporate Debtor in their letter dated 3-6-2014 mentioned that the balance amount will be credited to the account of the Operational Creditor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ractor seller before dispatch goods from respective places. All other entry tax, Special Entry Tax and Octroi, if applicable will be settled and paid directly by the Purchaser. Any increase in the rates of taxes and duties, imposition of any new taxes, duties and levies or consequential increases thereto will be payable by the Purchaser to the seller extra at the actuals on the basis of documentary proofs". It is averred that the above clause is evident that all the applicable taxes are to be borne by the Corporate Debtor. v. It is averred that the computation of the total amount viz. basic value and taxes are shown as follows: (in Rupees) Particulars Supply Erection Total Basic Value 3,44,00,000 31,00,000 3,75,00,000 Excise duty 25,71,775 25,71,775 Cess 77,154 77,154 CST 6,06,530 6,06,530 VAT 23,780 23,780 Service Tax -- 3,83,159 3,83,159 TOTAL 3,76,79,341 4,11,62,500 Amount paid by the Corporate Debtor (3,76,60,000) Balance Amount payable by the Corporate Debtor 35,02....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to have been paid on it. There is no proof filed to establish the same and as such the claim is still due to the Operational Creditor and the claim therefore, is not barred by limitation. 7. The learned counsel contended that the Corporate Debtor is contending that the claim is barred by limitation and that it had paid over and above the contract price and as such no amount is due to the operational creditor. The learned counsel contended that the Corporate Debtor tried to project as if the Operational Creditor abandoned the remaining work and left the site. The learned counsel contended that there is no truth in the said contention of the Corporate Debtor. On the other hand the Operational Creditor has completed the contract work and it is the Corporate Debtor, who had committed default in not paying the remaining balance amount. The learned counsel contended that the Operational Creditor is able to establish the debt due by the Corporate Debtor and default and as such the petition is liable to be admitted. 8. On the other hand learned counsel for the Corporate Debtor would contend that the contract was given to the Operational Creditor for supply and erection of 1 No. Air C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hether the alleged operational debt is barred by limitation. Limitation starts from the date of last invoice. Application ought to have been filed within three years from the date of last invoice or within three years from the date of acknowledgement, if any. In the present case the claim, if any, is barred by limitation. The invoices were raised in 2012. Application ought to have been filed within three years from the date of last Invoice, which was dated 20-7-2012. Even otherwise, application ought to have been filed within three years from the date of last payment which was stated to be made on 16-6-2012. Even according to the Operational Creditor, the default had occurred on 19-8-2012. Thus, the application is filed three years beyond the date of last Invoice as well as from the date of last payment. There was lot of E-mail correspondence with the Corporate Debtor. Of course, the Operational Creditor filed E-mail correspondence done by it with the Corporate Debtor at pages 46-66 of the Paper Booklet. Such E-mail correspondence is one-sided, viz. it emanates from the Operational Creditor without any acknowledgement in the form of reply from the Corporate Debtor. To constitute an....