TaxTMI 
TaxTMI 
2021 (2) TMI 146
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....nt/Corporate Debtor is a Company registered under the Companies Act, 1956 having its Registered Office Plot No: 1217/A, Veda Ark, Road No.36, Upstairs Smoky Pitara, Jubilee Hills, Hyderabad, Telangana. 3. Brief facts of the instant case, as stated by the Applicant are as under:- a. That the Petitioner/OC is engaged in the Manufacturing and supply of mild steel pressed door frames and shutters and allied products and that the Respondent/Corporate Debtor is into the business of building, transportation, irrigation, water supply, tunnels and industrial structural's of complete or parts thereof in EPC engineering construction projects. b. That the OC has received the purchase orders from M/s RVR Projects Private Limited i.e., the CD herein for supplying of mild steel pressed door frames with thickness of 1.25 mm including hinges jamb, lock jamb, bead rolling 6 for the total worth of Rs. 19,29,417/- (inclusive of Taxes) vide Work order RVR/NTPC(GPL)/WO/2014/3066 dated 20.09.2014. c. That initially the work order was issued worth of Rs. 19,29,417/- and subsequently the work was enhanced to Rs. 37,00,361/- on the instruction of Corporate Debtor orally and the....
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....thin limitation as there is continuous breach of the payment which is acknowledged by the Corporate Debtor. i. That there is no notice of disputes from the Corporate Debtor after receiving the material and that the material is being used in the projects. That the demand notice was issued to Corporate Debtor on 23.08.2019 and the same was delivered to the Corporate Debtor on 30.08.2019. That the Corporate Debtor has called the Operational Creditor for settlement on 04.10.2019 and 24.10.2019 at corporate office of the Corporate Debtor. On 04.10.2019 the Operational Creditor met the director of the Company Mr. R. Satyanarayana, during discussions he agreed to settle the issue on 24.10.2019. j. That on 24.10.2019, Mr. Mohan Rao represented the corporate debtor and committed to pay the amount of Rs. 6,80,976 in addition to 'C' forms payment of Rs. 1,56,510/-. That after 15 minutes, surprisingly Mr. Mohan Rao said that he will only pay the amount of 'C' forms i.e., Rs. 1,56,510/-, which was not accepted by the operational creditor. Calculation sheet done and approved by the Mr. Mohan Rao is attached. That after agreeing in principle and not accepting again, shows the ma....
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....SHUUTERS & ENGINEERING WORKS 54,979.00 04.11.2014 2 361411046856355 RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS & ENGINEERING WORKS 1,30,505.00 13.11.2014 3 361411046856355 RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS & ENGINEERING WORKS 4,45,561.00 08.11.2014 4 SAMLES WITHOUT WAYBILL BUT INVOICE RAISED REPORTED IN CST SALES PAID THE TAXES RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS & ENGINEERING WORKS 20,490.00 26.11.2014 5 361411265697843 RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS & ENGINEERING WORKS 1,84,625.00 26.11.2014 6 361411268946199 RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS & ENGINEERING WORKS 1,48,031.00 05.12.2014 7 361412051476710 RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS & ENGINEERING WORKS 58,357.00 09.12.2014 8 361412096251687 RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS & ENGINEERING WORKS 5,51,852.00 15.12.2014 9 ADDED TO ABOVE WAY BILL SEND THIS MATERIAL RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS & ENGINEERING WORKS 55,725.00 29.12.2014 10 MATERIAL DISPATCHED WITHOUT WAYBILL BUT INVOICE RAISED R....
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....melines along with fabrication work. However the Applicant herein did not complete the work as agreed, inspite of repeated reminders. That the authorized representative of the Corporate Debtor vide email dated 28.04.2015, specifically intimated the Operational Creditor that they are not responding to any calls and have not attended the works in proper way and in view of the same, the Corporate Debtor herein made alternate arrangements with a 3 party to complete the balance works and also further requested them to supervise and complete the balance works. d. That in view of the said breach committed by the Operational Creditor herein by not attending to the works, the Corporate Debtor hired a 3rd party contractor to complete the said works and in view of the same the Corporate Debtor incurred higher costs. e. That for the works completed by the applicant herein, they were paid and that there are no dues whatsoever pending. f. That the Corporate Debtor has addressed an email to the Operational Creditor herein dated 28.04.2015, to attend the works and yet the Operational Creditor have neither completed the works nor have responded to the said email communica....
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.... 37,00,361/- and they have received only a payment of Rs. 25,67,523/-. As per the records, the Corporate Debtor herein has paid a total sum of Rs. 38,07,790/- towards the material supplied and a sum of Rs. 3,58,372/- towards fabrication works at the site. Thus the Corporate Debtor has paid more than the claim of the Operational Creditor herein. n. That the Operational Creditor has failed in proving that no pre-existing dispute is in existence prior to the date of issuance of the demand notice. The Corporate Debtor has clearly elaborated upon how there was a pre-existing dispute and that no amount was payable by the corporate debtor herein. o. The Corporate Debtor has placed reliance on the following judgements : - i. The Hon'ble Supreme Court of India in Mobilox Innovations Pvt. Ltd., v. Kirusa Software Pvt. Ltd. (2017 SCC Online SC 1154) ii. The Hon'ble NCLAT in the case of Sandeep Reddy v. Jaycon infrastructure Ltd., [2018] 144 CLA 86 (NCLAT) Reiterating above, Ld. Counsel for the Corporate Debtor prayed to dismiss the instant Application. 5. The Learned Counsel for the Operational Creditor filed its Rejoinder reiterating the averme....
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.... on the grounds that the instant Application is barred by limitation, that no amount is due and payable by the Corporate Debtor and that there exists a pre-existing dispute between the parties. 10. With regard to the plea of Limitation, this Adjudicating Authority observes that the instant Application under Section 9 of IB Code, 2016 was filed on 18.11.2019, whereas the last date of invoice is 09.02.2015 and the date of default as mentioned in Part-IV of the Form - 5 in the instant Application is also 09.02.2015, which is much beyond the period of Limitation of three years. Clarifying the applicability of Article 137 of the Limitation Act to the proceedings under the IBC 2016, Hon'ble Supreme Court in the case of B.K. Educational Services Private Limited y. Parag Gupta and Associates held as under : "27 ...It is thus clear that since 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....