2021 (12) TMI 1235

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....dated April 30, 2013 for supply of 11,000 MT of coal (Grade F) during the year 2013 to the sponge iron plant of the said corporate debtor. (ii) The operational creditor upon supply of material during May 15, 2013 to June 18, 2013 issued four number of invoices on the corporate debtor for supply of 11,000 MT of coal of the total value of Rs. 2,03,15,464 against the total invoices of Rs. 2,03,15,464 raised by the operational creditor on the corporate debtor, the corporate debtor made total payment of Rs. 1,39,90,000 to the operational creditor, against total bill value of Rs. 2,03,15,464 raised by the operational creditor, the corporate debtor has made total payment of Rs. 1,39,90,000 leaving outstanding balance of Rs. 63,25,464. The last payment of Rs. 3,00,000 was received by the operational creditor from corporate debtor on July 15, 2015. Since no payment has been made by the corporate debtor, the operational creditor issued letters dated June 13, 2016, September 10, 2017 and July 4, 2018 and constantly followed-up the corporate debtor over phone demanding their payments which is due and payable by the corporate debtor and for release/ payment of the aforesaid outstanding....

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....f section 8 of the Code. The corporate debtor has raised a prior dispute by replying to the demand notice wherein it is explicitly mentioned that on July 20, 2018 the corporate debtor had written off the alleged amount after full and final settlement of dues between both the parties on July 15, 2015 after settling all the issues of quality, delay in supply, adjustments and various payments made. I further state and strongly press that the demand notice as sent by the applicant to the corporate debtor on August 9, 2019 never mentioned anything regarding the legal notices been sent by the applicant to the respondent. (ii) That letters dated June 13, 2016, September 10, 2017 and July 4, 2018 sent by the applications demanding a payment of Rs. 63,25,464 showing the same as outstanding. I state that, no such letters were received by the corporate debtor at any given point of time. In reference to the name, the applicant did not take into consideration that a mutual settlement towards the said amount was agreed upon between the parties that was already issued prior to the issuance of the letters and hence sent the said demand letter. I state that firstly, no dispute is raised ag....

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....imitation. 6. On the petitioner side solely relies upon the balance-sheet of the respondent filed for the years 2015 to 2018 before the Registrar of Companies in pursuance of mandatory requirement under the Companies Act, 2013. 7. The issue regarding the admissibility/considering the balance-sheet filed by the company before the Registrar of Companies for the purpose of invoking section 18 of the Limitation Act, 1963 for an acknowledgment of debts is no more integra after the pronouncement of the apex court judgment in Asset Reconstruction Co. (India) Ltd. v. Bishal Jaiswal [2021] 14 Comp Cas-OL 445 (SC). The apex court, while recording its finding pertaining to the acknowledgment of liability through entries made in balance-sheets has observed that there cannot be a strait jacket formula which can be applied in each and every case. In order to determine whether such entries would amount to acknowledgment, the courts are required to check whether such entries are made unequivocal or entered with any caveat. The apex court in paragraph 22 states as follows (page 479) : "A perusal of the aforesaid sections would show that there is no doubt that the filing of a balance-....

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....re "J" page 231 that due amount was written-off only on July 20, 2018 the same is also reiterated in its counter at page 6 paragraph 3(m). When the respondent itself admitted the fact that the amount of Rs. 63,25,464 was shown in the balance-sheets till July 19, 2018 and written-off on July 20, 2018. When the fact is admitted by the respondent there is no need to prove the said fact by the petitioner in view of section 58 of Indian Evidence Act, 1872. For the reasons discussed above it is concluded that the application is not barred by limitation. Point No. 2 9. Under section 9 of the IBC the operational creditor has to prove three ingredients to get through the application they are debt, due and dispute free. In this case on the respondent side raised plea of discharge of debt about four years back from the date of filing this application and disputed his liability. As observed by the apex court in Mobilox Innovations P. Ltd. v. Kirusa Software P. Ltd. [2017] 205 Comp Cas 324 (SC) ; [2018] 1 SCC 353 here the Tribunal need not put venture whether the respondent proved his contention, but it is enough to decide whether there is plausible contention which requires further inves....

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....erence regarding rate of interest leviable for the delayed payments and also there is no reference what is the time fixed for payment. The rate of interest levied and claimed also appears exorbitant. Even according to the petitioner in his ledgers for the periods 2015-16 to 2019-20 annexure "G" the due amount is mentioned is Rs. 63,25,464 further the petitioner remains silent for about four years and all of sudden awake from slumber and issued the demand notice and at first time claims interest. 12. On the petitioner side stated that even before the demand notice dated August 9, 2019 they sent three letters demanding the payments by courier's annexure "H" only courier bills are produced but no delivery proof has been filed. On the respondent side denies the receipt of any of such letters and plead that the letters were created for the purpose of the case. On the respondent side filed annexure "A" the blank track report of the consignment. It is not known how long the track report available on the public domine, further it is stated that the letters were sent by private courier so the presumption available under section 27 of the General Clauses Act, 1897 cannot be invoked. I....