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2017 (6) TMI 692 - Tri - Companies LawOperational creditor eligibility for filling Arbitration Application - period of limitation - Held that:- It is not right on the part of the operational creditor to raise debit notes charging minimum guaranteed conducting fee even after the dispossession of the corporate debtor from the premises. For there being material showing the corporate debtor was dispossessed on 26.03.2012, there is no occasion to the operational creditor to raise debit notes against the corporate debtor. Hence, the debit notes raised after March, 2012 will not constitute as debt. In respect of the dues from November, 2011 till the filing of the Arbitration Application, since the Arbitration Application was dismissed on 4.3.2014 without any liberty, based on partial settlement orally agreed between the parties, this Bench cannot go into the issue already decided against the operational creditor. The contention of the operational creditor that since the last debit note was raised on 5.4.2014, this petition filed on 4.4.2017 is within the period of limitation does not hold water. Arbitration Application was dismissed on 4.3.2014 and that claim covered the debit notes raised from November, 2011 to the date of filing of Arbitration Application on 30.3.2012. In order to save limitation on this portion of the claim, the operational creditor should have obtained liberty to proceed against the corporate debtor but that is not the case herein, the Arbitration Application was dismissed without any liberty. It is to be noted that after the last payment in September, 2011, neither there was an acknowledgement of liability nor any payment by the corporate debtor. In this situation, the whole debt as claimed by the financial creditor is time barred.
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