TaxTMI 
TaxTMI 
2020 (10) TMI 584
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....een placed at 'Exhibit A' p.25 of the 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 fol....
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.... 15 NE2520120100106740 27.12.2012 78,071.00 42 16 NE2520120100108098 30.12.2012 80,581.00 43 17 NE2520120100108439 31.12.2012 77,857.00 44 18 NE2520120100108948 01.01.2013 76,789.00 45 19 NE2520120100112256 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 again....
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....r seeking enforcement of a debt. Therefore, the same will not arrest limitation nor can any exclusion of this time be sought by the Operational Creditor as per 'para a and b', pp. 119-120 of the reply. Further the present Petition was filed on 12.04.2019, thus after excluding the time spent in the Hon'ble Bombay High Court, a period of 1141 days has elapsed 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 inspecti....
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....n a court without jurisdiction. On analysis of the said Section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service: (1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith; (3) The failure of the prior proceeding was due to defect of jurisdiction or other 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 Th....
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....ays (time spent in proceedings before the Hon'ble Bombay High Court and before this Adjudicating Authority), a period of 228 days prevails before limitation period of 3 years come to an end as per the provisions of Art. 137 of the Limitations Act. 16. Therefore, we hold that the petition filed by the Operational Creditor is within limitation. On the principle of res judicata: 17. For applying the principles of res judicata, the following ingredients must be satisfied: - 1) There must be a final judgment; 2) The judgment 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....
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....Limited [CIN: U45202MH2010PTC207309], the Corporate Debtor, is admitted. (b) There shall be a moratorium under section 14 of the IBC, regarding the following: (i) The institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (ii) Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; (iii) Any action to foreclose, recover or enforce 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; ....