TaxTMI 
TaxTMI 
2020 (10) TMI 584
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....he Petition. 2. The Corporate Debtor is a company incorporated on 31.08.2010 under the Companies Act, 1956, as a private company limited by shares with the Registrar of Companies, Maharashtra, Mumbai. Its registered office is at 204, Madhu Industrial Estate, Old Nagardas Road, Mogra Village, Andheri East, Mumbai-400059 within the State of Maharashtra. Therefore, this Bench has jurisdiction to deal with the present petition. 3. The present petition was filed on 12.04.2019 before this Adjudicating Authority on the ground that the Corporate Debtor failed to make payment of a sum of Rs. 16,39,008.00 (Rupees sixteen lakh thirty-nine thousand eight only) as principal amount and Rs. 24,49,424.96 (Rupees twenty-four lakh forty-nine thousand four hundred twenty-four and paise ninety-six only) as interest at the rate of 24% p.a. (at p.9 of the Petition) against 20 invoices raised between the period 04.12.2012 to 09.01.2013. The date of default is taken to be 07.02.2013, since in terms of the conditions mentioned in the invoice, interest would be charged if payment is not made within 30 days. 4. The case of the Operational Creditor is as follows: - (a) The Corporate Debtor by a letter da....
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....520120100112256 09.01.2013 82,129.00 46 20 NE2520120100112257 09.01.2013 82,770.00 47 Total outstanding amount 16,39,008.00 (g) Upon failure to receive the payment of the outstanding amount from Corporate Debtor, the Operational Creditor issued a Winding Up Notice dated 14.07.2014 under section 434 of the Companies Act, 1956 for the outstanding amount of Rs. 16,39,008.00 along with interest at the rate of 24% p.a. from the due date of each invoice. (at para VI, p. 9 of the Petition). A copy of the Winding Up notice is placed as 'Exhibit X' at p.48 of the petition. (h) Even after the notice was served, no payment was received from the Corporate Debtor. Hence, the Operational Creditor initiated the winding up proceedings under section 433(e) of the Companies Act, 1956 before the Hon'ble Bombay High Court against Corporate Debtor being Company Petition No. 750 of 2015. (at para VII, p. 10 of the Petition) (i) Subsequently, with the enforcement of the Insolvency & Bankruptcy Code, 2016 w.e.f. 01.12.2016 and notification viz. The Companies (Transfer of Pending Proceedings) Second Amendment Rules, 2017, notified vide GSR 732(E) da....
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.... from the date when the cause of action admittedly arose. b) The reliance on the liberty granted by the order dated 03.10.2018 is interpreted as carte blanche to file fresh proceedings by the Operational Creditor. Liberty when granted by a Court must be a liberty in consonance with the law and the liberties so granted cannot confer a right upon the party which is not so entitled in law. It is a settled position of law that the Limitation Act, 1963 is applicable to proceedings initiated under the code and even the period prior to coming into force of the code shall be taken into consideration for calculating the period of limitation. c) Upon receipt of the goods by the Corporate Debtor through the Operational Creditor's dealer in and around the year 2013, the Corporate Debtor conducted an inspection of the goods and found that the goods were of a substandard quality and immediately communicated the same to the Operational Creditor's Dealer. The Operational Creditor's dealer upon satisfying itself agreed to take back a certain portion of the goods and the accounts were to be settled thereafter. Despite repeated reminders and after a considerable lapse of time, the Ope....
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.... cause of like nature; (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and; (5) Both the proceedings are in a court." 12. Further the Operational Creditor has also relied on the following Judgment of the Hon'ble Supreme Court in the matter of M/S. Shakti Tubes Ltd. Tr. Director Vs. State of Bihar & Ors. (2009) 1 SCC 786 stating that: "22. Section 14 of the Limitation Act speaks of prosecution of the proceedings in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. What would be the true purport of the words "other cause of a like nature"? The same must relate to the subject matter of the issue. A Three-Judge Bench of this Court had an occasion to consider the same in Rameshwarlal v. Municipal Council, Tonk and Others [(1996) 6 SCC 100] wherein it was held: "3. Normally for application of Section 14, the court dealing with the matter in the first instance, which is the subject of the issue in the later case, must be found to have lack of jurisdiction or other cause of like nature to entertain the matter. However, since the High Court expressly declined to grant relief relegat....
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....nt must be on the merits; 3) The claims must be the same in the first and second proceeding; 4) The parties to the lis must either be the same or claiming through them. 18. It is observed that the order dated 03.10.2018 by the Adjudicating Authority, by which the previous proceeding abated, grants the Operational Creditor liberty to initiate a fresh proceeding as per the provisions of IBC. Therefore, that order which noted the abatement in terms of the notification number GSR (E) dated 29.06.2017 ibid, did not decide on the merits of the case. Therefore, the principles of res judicata are not satisfied and hence, this limb of the arguments advanced on the part of the Corporate Debtor deserves to be rejected. On pre-existing dispute: 19. The Corporate Debtor claims that there existed a dispute relating to the quality of goods supplied and hence no payment for the same had been made. No correspondence has been placed before this Adjudicating Authority regarding the dispute about quality and quantity of supplies. 20. Therefore, this defence on the part of the Corporate Debtor also deserves to be rejected. 21. Further the Corporate Debtor has mentioned in the affidavit in the ....
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....ce any security interest created by the Corporate Debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002; (iv) The recovery of any property by an owner or lessor where such property is occupied by or in possession of the Corporate Debtor. (c) Notwithstanding the above, during the period of moratorium: (i) The supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period; (ii) That the provisions of sub-section (1) of section 14 of the IBC shall not apply to such transactions as may be notified by the Central Government in consultation with any sectoral regulator; (d) The moratorium shall have effect from the date of this order till the completion of the CIRP or until this Tribunal approves the resolution plan under sub-section (1) of section 31 of the IBC or passes an order for liquidation of Corporate Debtor under section 33 of the IBC, as the case may be. (e) Public announcement of the CIRP shall be made immediately as specified under section 13 of the IBC re....