TaxTMI 
TaxTMI 
2021 (10) TMI 813
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....tre, Near Chincholi Fire Brigade, Link Road, Malad (W) Mumbai, Maharashtra-400064. Therefore, this Bench has jurisdiction to deal with the present petition. 3. The present petition was filed on 28.08.2019 by the Operational Creditor before this Adjudicating Authority on the ground that the Corporate Debtor failed to make payment of Rs. 1,44,83,328.30/- (Rupees one crore forty-four lakh eighty-three thousand three hundred twenty-eight and thirty paise only) as the principal amount and interest at the rate of 18% p.a. of Rs. 84,28,870.18. The date of default is 23.03.2019. 4. The case of the Operational Creditor is as under: a) The Operational Creditor is a Company incorporated under the provisions of the Companies Act, 1956 and continuing as such under the Companies Act, 2013. The Operational Creditor is engaged in the manufacture and sale of bearings of different types. b) The Corporate Debtor approached the Operational Creditor, in or around 2015, for supply of bearings of different types to the Corporate Debtor. Pursuant thereto, from 17th September 2015 to 23rd January, 2017, the Operational Creditor supplied bearings of different types to the Corporate D....
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....ould only repay an amount of Rs. 52,73,000/- (Rupees fifty-two lakh seventy-three thousand only) towards the outstanding debt to the Operational Creditor till 11th July 2017, following which the Corporate Debtor stopped making any payment to the Operational Creditor. f) The Corporate Debtor and Operational Creditor again held a joint meeting on 13th September 2017 at the office of the Corporate Debtor in Mumbai, the minutes whereof were signed by both Operational Creditor and the Corporate Debtor, to discuss the regularization of the payment by the Corporate Debtor. A copy of the minutes of meeting is annexed as Exhibit 'D' of the Petition. At the said meeting, it was agreed by the Corporate Debtor that it would repay an amount of Rs. 1,72,27,000/-(Rupees one crore seventy-two lakh twenty-seven thousand only) to the Operational Creditor in part payments of Rs. 45,27,000/- (Rupees forty-five lakh seventy-seven thousand only) by December 2017, and the balance amount of approximately Rs. 1,27,00,000/- (Rupees one crore twenty-seven lakh only) would be repaid in the following six months in instalments. To that end, a second schedule of payment was agreed to by the Oper....
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....llows: Effect of acknowledgment in writing.--(1) Where, before the expiration of the prescribed period for a suit of application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. c) The issue of applicability of section 18 of the Limitation Act, 1963 on proceedings under the Code has been fairly well settled by the Hon'ble Supreme Court in Laxmi Pat Surana V. Union Bank of India & Anr. [Civil Appeal No. 2730 of 2020]. The brief facts of the said case are more particularly mentioned herein under: i) Union Bank of India being the Financial Creditor extended credit facilities to Mahaveer Construction, a proprietary firm which was guaranteed by one Surana Metals Limited, being the Corporate Debtor. The date of default was 30.01.2010, whereas, the Financial Creditor filed an application under section 7 of the IBC against Surana Metals Limited (as th....
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....iod of limitation of three years. iii) In the regard, the Financial Creditor relied on an email received by the Corporate Debtor on 02.05.2016 followed by a letter received by the Corporate Debtor on 30.05.2016 which clearly acknowledged the dues to the Operational Creditor and thereby sought the benefit of section 18 of the Limitation Act, 1963 and claimed that a fresh period of limitation shall be computed from the date of acknowledgement of the letter. In accordance thereto, the Operational Creditor claimed that the said Petition was very well filed within the period of limitation. iv) The question that arose before the Hon'ble NCLAT was whether the said application under section 7 was barred by limitation and as to whether the Financial Creditor is entitled to take the benefit of section 18 of Limitation Act under the provision of the Code. v) The NCLAT on the basis of the email and the letter, accepted the arguments of the application of section 18 of the Limitation Act to the facts and circumstances of the case and dismissed the appeal of M.M. Ramachandran. vi) The said order passed by the Hon'ble NCLAT was challenged by M.M. Ramach....
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....tioned at p. 5 of the Petition. Findings: 9. We have heard the arguments of Learned Counsel for Operational Creditor and perused the records. 10. On 10.03.2021, during the course of arguments the Bench asked the Ld. Counsel for the Operational Creditor that how section 18 of Limitation Act, 1963 is applicable to get the Petition well within the period of limitation as some of the invoices pertain to the year 2015 and 2016 and the Petition was filed on 28.08.2019. However, the Operational Creditor has filed its written submissions to answer the query raised by the Bench whereby it is submitted that the Corporate Debtor has admitted its liabilities in the minutes of meeting dated 12.09.2016 and 13.09.2017 whereby it was resolved that the debts of the Corporate Debtor shall be reconciled. The said minutes of the meeting was signed by both Operational Creditor and Corporate Debtor. The Corporate Debtor chose not to appear on the date of final hearing in the matter. 11. Further, in pursuance to the above submissions the Corporate Debtor also made certain payment towards the reconciled outstanding dues till 23.03.2019. In view of the aforesaid it is established that the outst....
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....of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (ii) Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; (iii) Any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002; (iv) The recovery of any property by an owner or lessor where such property is occupied by or in possession of the Corporate Debtor. (c) Notwithstanding the above, during the period of moratorium,- (i) The supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period; (ii) That the provisions of sub-section (1) of section 14 of the IBC shall not apply to such transactions as may be notified by the Central Gover....