TaxTMI 
TaxTMI 
2021 (8) TMI 606
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....etition is filed before this Adjudicating Authority on the ground that the Corporate Debtor failed to make payment of a sum of Rs. 1,83,58,490 (Rupees One Crore Eighty-Three Lakhs Fifty-Eighty Thousand Four Hundred and Ninety Only) including interest. The submissions of the Operational Creditor: a. The Operational Creditor had on 23.02.2013, made quotation, being Quotation No.AFS-0668-05/ME/13 in regard to the work to be carried out at Marvell Edge, Viman Nagar, Pune, Pursuant to the Quotation, the Respondent awarded, via a Letter of Award, bearing Reference No. EDGE/FAC/001 dated 01.03.2013, work for design, drawing, fabrication, installation/erection, field test, protection cleaning and handover of Façade Grading System at Marvel Edge, Viman Nagar, Pune. Thereafter, the Applicant and Respondent entered into an Article of Agreement dated 14.03.2013. b. Pursuant to the said Articles of Agreement, the Applicant has carried out the work in accordance with the said Articles of Agreement and has raised 24 invoices from time to time for the amounts due and payable by the Respondent. c. The principal amount of debt due from the Respondent to the Applicant in terms of the ou....
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....perational Creditor within the time limit provided by law. The present Company Petition has been preferred in October, 2018 which is almost after an period of 3 years from the date the debt fell due. While preferring the present Company Petition, the Operational Creditor ought to have preferred an application seeking condonation of delay. Further submitted that the present Company Petition is barred by the provision of law including the law of limitation. b. The Statutory Notice dated 06.09.2018 issued by the Operational Creditor was received by Marvel Realtors and Developers Ltd and same was reply by Marvel Realtors and Developers Limited on 19.09.2018 then thereafter the Statutory Notice dated 26.09.2018 was issued by the Operational Creditor to the Marvel Edge Realtors Private Limited/Corporate Debtor on 19.09.2018. The Statutory notice which was issued to Marvel Edge Realtors Private Limited had same averments/contains are stated in the prior Statutory Notice issued to Marvel Realtors and Developers Limited; since both the sister companies and its directors are carrying on the business of Real Estate Developers and Builder, and that the said Notice issued to Marvel Realtors a....
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....k to be perform by the Operational Creditor remain incomplete from the year 2015 till date the Operational Creditor has never performed his work as per the "LOA" and he was failed to complete the scope of work as within agreed time schedule of work due to that respondents only who has suffered loss and which was resulted in to slow down the progress of Project and only Corporate Debtor has suffered loss and which resulted in delay in delivery of possession to unit holders who has booked the units in the said project and due to which cases were filed by the unit holders before Maharashtra Real Estate Tribunal and in some of cases the Authority held liable the Respondents for delay and order to pay compensation along with interest to the unit holders. It reflect that the Respondent only has suffered due to Non Performance of work by the petitioner even though Respondents had release more amount than rquired. I say that the petitioner delayed in the execution of work and the Respondent on several occasions raised the grievance about the same with the petitioner and the same could be reflected from the mail communications. The respondent further submitted that as per Section 5(6) of th....
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....m of about Rs. 1.33 crores. The petitioner has also claimed interest and has mentioned that the petitioner is an MSME and as per the MSME Act, the respondent has liability to pay the interest on the principal debt. 2. The Bench notes that the respondent has shared its ledger statement with petitioner in relation to reconciliation of account on 09.10.2015 from where it is clear that the respondent has a liability to the petitioner. In the ledger statement of the petitioner appearing in the books of account of the respondent, the balance amount payable is shown as Rs. 61,08,875/- and retention amount withheld is shown as Rs. 56,99,345/-. 3. The Bench notes that the email dated 19.10.2015 sent by the respondent to the petitioner is without any reservation and on own violation. Similarly, vide an email dated 22.03.2017, after completion of work the respondent through its authorised representative has shared its ledger statement with the petitioner. Again, in that ledger is statement reflecting position up to 12.01.2017 and the sum of balance amount and retention amount payable is Rs. 61,08,875/- as reflected in the earlier mail dated 19.10.2015. 4. The Bench notes that the respon....
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....fore, is of the view that minor defects which have arisen during the completion of project were adequately attended to by the petitioner and no dispute existed at the time of the filing of the petition. 9. Regarding the claims being barred by law, the respondent mentioned that the debt was due on 28.07.2015 and the company petition was preferred in October 2018, therefore, it is after a period of 3 years, therefore, it is hit by limitation. In this regard, the petitioner has mentioned that in the running account, the last invoice was raised by the petitioner on 26.06.2015 and ordinarily the limitation period would have expired 3 years from the due date. However, since the respondent had issued two unequivocal admission of its liability by way of sharing respondent's books of accounts on 19.10.2015 and again on 22.03.2017 with the petitioner, it amounts to admission of liability. 10. The bench notes that it is established rule that when a party issues acknowledgment of its liability in writing the period of limitation starts afresh. Therefore, the Bench has no doubt that the respondent unequivocal admission of liability negates the contention of the petitioner that the claim is ....