TaxTMI 
TaxTMI 
2020 (10) TMI 686
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....after referred to as the Operational Creditor) for initiating Corporate Insolvency Resolution Process (hereinafter referred to as "CIRP") against M/s. Manpreet Engineering Pvt. Ltd, (hereinafter referred to as the Corporate Debtor/Respondent). 2. Brief facts of the Operational Creditor's case as per Form 5 is that the Operational Creditor is a Company incorporated under the Companies Act, 1956 and have been carrying on business of supply of cranes on hire/rental basis for various companies. The Corporate Debtor is engaged in civil engineering business, it was in need of cranes for its project site at 1X27.5 MW GPP-5 Shree Raipur Cement Plant, village-Kharpradih, Tehsil-Sigma, District-Baloda Bazar, Raipur, Chhattisgarh and accordingl....
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....ed to reply to the same. The Operational Creditor then filed a civil suit for recovery, bearing No. Spl. Summary Suit-19/2016 before the Court of Ld. GSD, Pune. The said suit is decreed with cost in present Operational Creditor's favour. Vide the said decree dated 18.09.2018, said suit was disposed off with a direction on the Corporate Debtor to pay an amount of Rs. 87,66,123/- (Rupees Eighty Seven Lakh Sixty Six Thousand One Hundred Twenty Three Only) along with 12% [interest] on all the outstanding invoices from their respective due dates till the date of realisation. It is stated that, till date an amount of Rs. 1,32,58,923/- (Rupees One Crore Thirty Two Lakh Fifty Eight Thousand Nine Hundred Twenty Three Only) is due and payable. Th....
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.... recovery of hire charges. The said invoices were duly received by Corporate Debtor. Till date Corporate Debtor has made only part payment of the outstanding amount payable by the Corporate Debtor. The default admittedly took place on 31.01.2015 and the present application under section 9 of the Insolvency and Bankruptcy Code, 2016 was filed on 16.07.2019 i.e. almost Four and a half years later. The Operational Creditor submits that there is a decree dated 18.09.2018 in its favour which saves the limitation. During arguments, the Ld. Counsel appearing for the Operational Creditor further submitted that the present application is based on the said decree. Upon being asked, the counsel also submitted that till date no Execution Petition has b....
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....ucational Services Pvt. Ltd. v. Parag Gupta and Associates, MANU/SC/1160/2018 the honourable Supreme Court has held that: "27. The Limitation Act is applicable to applications filed Under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. "The right to sue", therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred Under Article 137 of the Limitation Act..." 10. In the present case the default has occurred over four years prior to the date of filing of the present application. The provision that may save the limitation for Applicant-Operational Creditor is acknow....
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.... interest at the rate of 12% per annum could have been executed only through an execution case." 11. It is also to be observed that the said decree in question is a result of a money suit for recovery and instead of filing for an execution proceeding before the appropriate forum, the Operational Creditor has initiated the present proceedings for recovery of the said decretal amount. Though, proceedings before both the fora can be filed however, a proceeding under section 9 of the Code cannot be initiated solely on the basis of a decree. Also, as per Part V, Sr. No. 3 of Form-5 of IBBI (Application to Adjudicating Authority) Rules, 2016 a decree may be used as an evidence of default, however, it cannot for the basis of an application unde....
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.... is answered accordingly. 12. Issue Nos. 2 & 3:- The Operational Creditor in the present case submits that the demand notice sent by post was refused by the Corporate Debtor and to substantiate the same, the Operational Creditor has filed a photo copy of the alleged envelope in which the demand notice was purportedly sent and further submits that since it has been refused, it shall be deemed to have been delivered to the Corporate Debtor. However, as per Rule 5(2) of IBBI (Application to Adjudicating Authority) Rules, 2016 the demand notice under section 8 of the Code has to be effectively delivered on the Corporate Debtor. The IBC being a complete code in itself and its provisions having an overriding effect on other laws, by virtue of ....