TMI Blog2018 (8) TMI 1790X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is time barred. - C.P. (IB) No. 195/9/NCLT/AHM/2018 - - - Dated:- 17-8-2018 - Ms. Manorama Kumari, J. Appearance: PCS Mr. Mohd. Nazim Khan with PCS Mr. Sanyam Goel present for operational creditor/ petitioner ORDER 1. M/S. Agarwal Coal Corporation Private Limited, through its Authorised Signatory, filed this Application with a prayer for initiation of corporate insolvency resolution process against M/S. Shriram Cement Limited, under Section 9 of the Insolvency and Bankruptcy Code, 2016 [hereinafter referred to as the Code ]. 2. The applicant is a company registered under the Companies Act, 1956 having its registered office at Indore, Madhya Pradesh. The Operational Creditor is engaged in the business of import and trade of coal in India whereas the Corporate Debtor is engaged in the business of manufacturing and supplying of cement, PPC cement, OPC cement etc. The business between the Operational Creditor and the Corporate Debtor continued till 26.02.2013 as per various payment collection memos to the Corporate Debtor. It is stated by the Applicant that as on 26.02.2013, the outstanding amount payable by the Respondent to the Applicant stood on ₹ 58 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cost of Coal Lifted by you of our High Seas Sales 134.75 5548.00 747593.00 Total Amount 5719536.24 Less: Partial Payment Received on various dates 1519536.24 Outstanding Amount 4200000.00 5. It is stated by the Ld. Lawyer of the Applicant that on 01.03.2017 the Operational Creditor and the Corporate Debtor entered into a debt settlement agreement inter alia providing the terms and conditions of settlement of debt of ₹ 58,19,490/- and under the said agreement both the parties agreed to full and final settlement of the dues at Rs. The Corporate Debtor in pursuant to the Debt Settlement Agreement dated 01.03.2017 made few payments. However, the Corporate Debtor never honoured the terms and conditions of the said debt settlement agreement in full. Thus, after receiving some payments on various dates, the total amount payable by the Corporate Debtor to the operational creditor stood at Rs. as on 16.01.2018. 6. On 14.02.2018 the operational creditor issued demand notice to the corporate debtor under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .02.2013 which reflect that amount in default was due on 26.02.2013. The Applicant has also annexed the certificate from the UCO Bank confirming non receipt of payment from the Corporate Debtor as on 26.02.2013 against the aforesaid 5 Nos. of invoices. Annexure 10 (Page 131) attached with the Application is the said certificate. 12. Thus, admittedly the debt is due as on 26.02.2013 and is time barred and mere execution of the Debt Settlement Agreement by the Applicant/Corporate Debtor cannot infuse a new lease of life to the debt as the said agreement is entered into after the expiry of 3 years i.e. on 01.03.2017 i.e. nearly after 4 years. 13. In this regard, it is pertinent to mention herein that, in view of the recent amendment made in the Insolvency and Bankruptcy Code, 2016 by inserting Section 238A, the provisions of the Limitation Act, 1963 are attracted which read as under .....the provisions of Limitation Act, shall, as far as may apply to the proceedings or appeals before the Adjudicating Authority. 14. Hence, in view of the above amendment, the instant application is time barred and hit by Section 18 of the Limitation Act, 1963. The amount of debt has become due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Bank of India Vs. V. Ramakrishnan Anr. dealing with Section 14 of the Insolvency and Bankruptcy Code which is reproduced herein: Para 29 ... .amendment was to clarify and set at rest what the committee thought was an overbroad interpretation of Section 14. That such clarificatory amendment is retrospective in nature.... While discussing the said issue, the Hon'ble Supreme Court has relied upon the following judgments: (i) CIT v. Shelly Products, (2003) 5 SCC 461: 38. It was submitted that after 1-4-1989, in case the assessment is annulled the assesse is entitled to refund only of the amount, if any, of the tax paid in excess of the tax chargeable on the total income returned by the assesse. But before the amendment came into effect the position in law was quite different and that is why the legislature thought it proper to amend the section and insert the proviso. On the other hand, learned counsel for the Revenue submitted that the proviso is merely declaratory and does not change the legal position as existed before the amendment. It was submitted that this Court in CIT v. Chittor Electric Supply corpn [(1995) 2 SCC 430: (1995) 212 ITR 404] has held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR 1960 SC 12, Para 29]: 'For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a Preamble, and also the word declared as well as the word enacted .' But the use of the words 'it is declared' is not conclusive that the Act is declaratory for these words may, at times, be used to introduced new rules of law and the Act in the latter case will only be amending the law and will not necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is 'to explain' an earlier Act, it would be without object unless construed retrospective. An explanatory act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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