TaxTMI 
TaxTMI 
2021 (5) TMI 819
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.... provisions of the erstwhile Companies Act, 1956 having its registered Office at 115 Ansal Bhawan 16 KG Marg New Delhi 110001, which lies within the jurisdiction of this Tribunal. 3. That the Authorized Share Capital of the Corporate Debtor is Rs. 1,50,00,00,000 and Paid-up Share Capital is Rs. 78,70,24,380 as per the Master Data of the Corporate Debtor annexed. 4. It is stated by the Operational Creditor that it is in the business of providing Architectural Consultancy services and the Corporate Debtor had approached it in the year 2009, to work for its various projects being developed at Lucknow. 5. It is averred by the Operational Creditor in the Part IV of the Petition that the total amount of operational debt claimed is Rs. 63,76,974/-, which has been defaulted by the Corporate Debtor. 6. It is stated by the Operational Creditor that it had rendered Architectural Consultancy Services to the Corporate Debtor for the latter's projects being developed at Lucknow. 7. It is further stated by the Operational Creditor that it had entered into multiple work orders/contracts, for the said architectural services, with the Corporate Debtor. The details of the work orde....
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....e Corporate Debtor in discharge of its liability towards the total due. iii. Thirdly, on 27.01.2017 when the Applicant sent mail accepting the land in lieu of the pending operation debt as offered by the Corporate Debtor during settlement meetings. iv. Fourthly, on 29.11.2019 upon lapse of 7 days time period for payment as per the demand letter dated 23.11.2019 as sent by the Applicant, whereby the provisional bills were updated as final bills and the same were neither disputed nor denied by the Corporate Debtor." 15. It is argued by the Corporate Debtor that from the above, it is clear that the work was completed in the year January 2014 and therefore, the present Petition is time barred. Also, it was added that the Operational Creditor has neither sent the invoices No. 1056 to 1059 along with the demand notice nor the same are annexed to the Petition. 16. It was further argued by the Corporate Debtor that the Operational Creditor itself has admitted at Page 262 of the Petition that it had done only 50% of the work corresponding to the Invoice No. 1058 at serial no 4 and 75% work corresponding to the Invoice No. 1059 at serial no. 5 of the table (reproduced....
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....wer in respect of the loan agreement dated 28.03.2018 where the 'Corporate Debtor' had agreed to pay Rs. 1,08,755/- per month beginning from 30.03.2013 to 30.03.2016 and also 13 Company Appeal (AT) Insolvency No. 756 of 2018 this Tribunal keeping in mind that the application u/s. 7 of the 'I&B' Code was filed by the Respondent/Applicant before the Adjudicating Authority on 16.12.2017, this Tribunal comes to a consequent conclusion that the claim of the Respondent/Applicant is not barred by the plea of Limitation. Consequently, the present Appeal fails and the same is dismissed but without costs. All the pending IA's are closed. The Appellant is directed to file certified copy of the Impugned Order dated 03.10.2018 within 4 days from today." 20. That the Operational Creditor has also relied on the Judgment of Hon'ble NCLAT dated 22.01.2021 passed in the matter of MCC Concrete Vs. Northway Spaces Ltd. in Company Appeal (AT) (INS) NO. 527 of 2020, which reads as below: "22. Now, we have considered the objection of ld. counsel for the respondent that the claim is barred by limitation. The ledger account is a running account which shows that on 05/11/....
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.... of Limitation can only be done by way of application of Section 5 of The Limitation Act, 1963, if any case for the condonation of delay is made out." 23. Furthermore, the Corporate Debtor has stated that the present petition is barred by limitation and has placed reliance on the Judgment of the Hon'ble Supreme Court in the matter of Sivakumar Vs. Natrajan (2009) 13 SCC 623, wherein it was held that: "13. Our attention has furthermore been drawn to a decision of the Kerala High Court in K.V. Muhammed Kunhi v. P. Janardhanan [1998 Crl. L.J. 4330], wherein construing proviso (a) appended to Section 138 of the Act, a learned Single Judge held: ...A comparative study of both the Sections in the Act and the General Clauses Act significantly indicate that the period of limitation has to be reckoned from the date on which the cheque or instrument was drawn. The words `from' and `to' employed in Section 9 of the General Clauses Act are evidently clear that in cases where there is an ambiguity or suspicion with reference to the date of commencement of period of limitation in any Act or special enactment, the words 'from and 'to' employed in Secti....
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.... to an Operational Creditor, to provide an escape route from submission of the invoice, which can be treated as the most relevant document to prove the debt and amount in default." 26. That in the instant case, the nature of transaction is such that it was necessary to annex the invoices for proving the existence of default. Since the invoices bearing no. 1056 to 1059 were not annexed by the Operational Creditor with the Demand Notice, its reliance on 29.11.2019 as the date of default is erroneous. This defect is of such a nature that it cannot be allowed to be rectified at this stage by exercising our power as stipulated under the Proviso to Section 9(5)(ii) of IBC 2016. 27. That as held by the Hon'ble Supreme Court in the matter of B.K. Educational Services Private Limited Vs. Parag Gupta and Associates in the Civil Appeal No. 23988 of 2017: "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....
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....echno Services Private Limited in Company Appeal (AT) (Insolvency) No. 98 of 2019 dated 17.03.2021, wherein the following is held: 21. As can be seen from Section 8, reproduced above, the moment there is an occurrence of a default, copy of an invoice demanding payment of the amount involved in the default is to be delivered by way of a Demand Notice to the 'Operational Creditor'. Form III gives the details of the invoices. In the instant case, the 'Operational Creditor' has given the details of invoices from (pages 399 to 406 of Volume II) and has also crystallized the amount at Rs. 2,39,85,521.35/-, which is unpaid from 2011. Therefore, the argument of the Learned Counsel for the 'Operational Creditor' that the period should be confined only from 2015 to 2017 cannot be sustained. The Tribunal cannot confine to one or other invoice if the Applicant has relied on all the invoices to arrive at the amount of Rs. 2,39,85,521.35/- in the Demand Notice under Section 8. We are of the view that the Tribunal does not have Jurisdiction in these Insolvency Proceedings to cut-short the invoices which would cause recurring dates of cause of action as it is not a....