TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1083
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....with project management services on 10.02.2013. As per clause 5.3 of the said agreement, the Respondent was obliged to complete the work/project within a period of 30 months for which the Corporate Person agreed to pay a total sum of Rs. 40,50,000/- i.e. Rs. 1,35,000/- per month, plus the salary of two engineers on actual plus 40% over heads and profit on the same. The agreement was terminated by the Corporate Person within a period of 18 months and further the Respondent did not deploy any resource in April, 2013 at the site. The Respondent raised its invoice dated 18.09.2015 for final amount of Rs. 49,32,917/-though it had miserably failed to serve for the entire period of 30 months. 3. The Corporate Person after receipt of invoice, vide its email dated 18.11.2015 raised objections to the amount claimed by the Respondent. In the said email dated 18.11.2015, the Corporate Person clearly stated that firstly, the Respondent did not serve for the entire period of 30 months and has only served for a period of 18 months, therefore, it was not entitled to the entire consideration as agreed, secondly, mobilization advance is required to be adjusted in the final settlement and finally, t....
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....ate Person by the Tribunal. 10. After the aforesaid application was filed, the Appellant received an email dated 28.05.2019 from the Respondent raising claim against the Corporate Person on the basis of invoice dated 18.09.2015. However, it is alleged that with the said email, no claim was filed by the Respondent before the liquidator nor proof of claim was filed before the Tribunal. 11. The Respondent then filed an application bearing CA No. 672 of 2019 under Section 60(5) of the Code (intervention application) on 28.08.2019 but the said application was dismissed by the Tribunal vide its order dated 03.02.2021. The operative part of the order is as under:- "It is on record that an absolute counter-offer of Rs. 9.6L was given by the non-applicant on 18.09.2015, without prejudice to their rights and conditions and it was asked to the Applicant to provide the project data to the non- applicant along with final invoice for closure, but the offer was rejected by the applicant. The Applicant has also sent a notice on 10.05.2017 under Section 8 of the IBC, 2016 to which reply was given by the non-applicant on 30.05.2017 denying the liability and made a reference the earlier reply d....
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....ticle 137 of the Limitation Act, 1963. In this regard, it is submitted that if the period of three years is to be counted from the date of invoice dated 18.09.2015 then the limitation had expired on 18.09.2018. If the limitation is to be counted from the email dated 18.11.2015 of the Corporate Person for Rs. 9,60,000/- then the limitation had expired on 18.11.2018, if the limitation is to be counted from 16.032019 i.e. reply filed by the Corporate Person to the notice under Section 434 of the Act wherein it had made an offer of Rs. 1,62,000/- yet the period of three years had expired on 16.03.2019. Lastly, if the limitation is to be counted from 18.07.2016 for which this court had issued a direction to be considered, the limitation of three years would have expired on 17.07.2019. It is submitted that since the application for intervention was filed on 28.08.2019, therefore, it was beyond the period of three years and as such it could not have been taken into consideration for passing the impugned order. 15. It is further submitted that the Respondent had been sleeping over his right at every stage much less from the date of issuance of invoice dated 18.09.2015, the date when notic....
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....mpletion of all the liquidation proceedings, the liquidator prepared the final report on 10.05.2019 and the same was filed before the RoC and IBBI on 23.05.2019 pursuant to which he filed the application, therefore, it was not the stage when the intervention application for the claim can be filed and entertained. 19. On the other hand, Counsel for the Respondent has submitted that the Tribunal has only allowed the intervention but the matter is yet to be decided on merits once the pleadings are complete. He has further submitted that the Tribunal took note of the email dated 18.07.2016 and passed the impugned order only for the purpose of intervention by the Respondent who had been directed to file reply to the main petition. 20. It is thus submitted that no prejudicial order has been passed by the Tribunal against which the present appeal has been filed. 21. Counsel for the Respondent has further submitted that the Respondent qualifies under the proviso to Section 59(3)(c) as a creditor with an acknowledged claim. It is submitted that in case of existing debt, approval from creditors representing two thirds in value must be obtained but the respondent was neither considered nor....
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....ation under sub-clause (a), there shall be- (i) a special resolution of the members of the company in a general meeting requiring the company to be liquidated voluntarily and appointing an insolvency professional to act as the liquidator; or (ii) a resolution of the members of the company in a general meeting requiring the company to be liquidated voluntarily as a result of expiry of the period of its duration, if any, fixed by its articles or on the occurrence of any event in respect of which the articles provide that the company shall be dissolved, as the case may be and appointing an insolvency professional to act as the liquidator: Provided that the company owes any debt to any person, creditors representing two-thirds in value of the debt of the company shall approve the resolution passed under subclause (c) within seven days of such resolution. (4) The company shall notify the Registrar of Companies and the Board about the resolution under sub-section (3) to liquidate the company within seven days of such resolution or the subsequent approval by the creditors, as the case may be. (5) Subject to approval of the creditors under sub-section (3), the voluntary liqu....
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....an application which is not prescribed in the limitation act would fall within the purview of Article 137 of the Act which prescribe a period of three years. 28. There is no dispute that the Liquidator invited the claims in terms of Regulation 14 by making publication in two newspapers on 07.02.2018. The last date for submission of claim was 07.03.2018. The Respondent was supposed to file the claim, if any, on the basis of the invoice dated 18.09.2015 up to 07.03.2018 but no such claim was filed. 29. It is also pertinent to mention that the Respondent earlier had issued twice notice under Section 8 of the code raising the same claim and the last notice was issued in that regard was on 30.05.2017 which was duly replied by the Corporate Person but no proceedings were initiated by the Respondent under Section 9 of the code. 30. The Appellant / Liquidator completed the proceedings in terms of provisions of Section 59 r/w Regulations and not only remitted the entire balance amount of the liquidation proceedings to the accounts of the stakeholders on 10.04.2019 but also closed the liquidation bank account on 04.05.2019, thereafter, he prepared his final report on 10.05.2019 and inform....