TaxTMI 
TaxTMI 
2021 (5) TMI 279
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....d the Corporate Debtor to start Corporate Insolvency Resolution Process ("CIRP") of the Corporate Debtor on the ground that the Corporate Debtor committed default in paying operational debt of Rs. 11,43,802/-. 2. The Operational Creditor stated that under various invoices from 07.12.2012 to 26.12.2012, it sold and supplied the Corporate Debtor certain chemical items. As the Corporate Debtor did not pay the price of goods, the Operational Creditor has filed in the Court of District Judge-1, Rohini, Delhi a suit for recovery of amount. That suit was decreed by the Additional District Judge-1 vide judgment of order dated 09.12.2016. Thereafter, the Operational Creditor sent the Corporate Debtor, notice of demand under Section 8 of the IB. C....
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.... we can safely conclude that there appears no dispute to the fact that in the year 2012, the Operational Creditor sold and supplied to the Corporate Debtor certain chemical goods to which the Corporate Debtor did not pay the price in full. It is also not in dispute that the operational debt to the extent of Rs. 11,43,802/- is still due and payable by the Corporate Debtor to the Operational Creditor. The Operational Creditor's Suit was decreed for the recovery amount by order dated 09.12.2016. 7. On the basis of these admitted facts, we have to consider the defense as raised by the Corporate Debtor. It appears that the Corporate Debtor raised defenses (i) since the debt amount is less than rupees one crore, this application is not mai....
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....n states that: "for purpose of this Section and demand notice means notice served by an operational creditor to the Corporate Debtor." Section 9 of the IB. Code states that: "after expiry of ten days from the date of delivery of notice demanding payment as per Section 8 of the IB. Code, if the Operational Creditor does not receive payment or notice pointing out dispute, the Operational Creditor may file such application." In short, if provisions of Section 8 and Section 9 of the IB. Code are read together, then inevitably inference is that delivery of notice under Section 8 of IB. Code by the Operational Creditor to the Corporate Debtor before filing application under Section 9 of the IB. Code is sine-qua-none to mai....
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....now takes to consider the next defense raised by the Corporate Debtor. According to the Corporate Debtor, it is a time barred debt. 13. The Operational Creditor himself contended that the date of default is 13.09.2019. However, it is apparently misleading statement made by the Operational Creditor. It is not in dispute that he had filed a suit for recovery of the said amount in the court of District Judge, Rohini, New Delhi (Civil Suit No. 58419 of 2016). He produced copy of are plaint in that suit (page No. 31). In that plaint, the Operational Creditor stated that he had received last payment from the Corporate Debtor on 25.01.2013. According the Operational Creditor, cause of action to file suit has arisen to him on that date. In short....
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....debt became due/this application is filed six days earlier before the expiry of three years therefrom. However, as far as application under Section 9 based on decree in civil court is concerned, the Hon'ble NCLAT in case of Ishrat Ali Vs. Cosmos Cooperative Society Limited (Company Appeal No. 121 of 2019) it has been held that: "15. A suit for recovery of money can be filed only when there is a default of dues. Even if the decree is passed, the date of default does not shift forward to the date of decree or date of payment for execution. Decree can be executed within specified period i.e. 12 years. If it is executable within the period of limitation, one cannot allege that there is a default of decree or payment of dues." 15....