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2020 (10) TMI 540 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - allegation that Corporate Debtor has also not made any payment after the receipt of the Demand Notice dated 18th December, 2018 and the last part-payment made by the Corporate Debtor was on 18th January, 2017 - HELD THAT:- Section 8 and 9 cast a duty upon the operational-creditor as well as Corporate Debtor to act as per Section 8 and if they fail to fulfil the conditions of Section 8 and 9 then in that case neither the application filed by the operational-creditor is maintainable nor the plea of existing of disputes or the payment of debt subsequently taken by the Corporate Debtor can be taken into consideration. When we shall consider the case in hand then we are of the considered view that since it is specifically mentioned in Section 8(2) of the Code that within ten days from the date of the receipt of the demand notice, the corporate-debtor is required to bring to the notice of the operational-creditor, the existence of dispute or the documents regarding the payment of debt, therefore, we have no option, but to hold that since the corporate-debtor fails to give the reply of the demand notice and raised the disputes, hence after his appearance in response to the notice, he cannot raise it by filing the reply to the application filed on behalf of the operational-creditor Mere plain reading of the provision shows that when the payment of account of debt or of interest is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorized in this behalf, a fresh period of limitation shall be computed on the time when the payment was made. Here in the case in hand, all the invoices are in between 3rd September, 2015 to 30th November, 2015, whereas the last payment was made on 18th January, 2017 which is within 3 years from the date of issuance of the invoices as required under article 137 of the Limitation Act, therefore, the last payment was within 3 years from the date of the issuance of the invoice - limitation runs from the last date of payment and when we shall count the date of limitation from 18th January, 2017 then we find that the present application is filed on 11th September, 2019, therefore, it is within 3 years from the date of last payment made by the Corporate Debtor. From the date of last payment that is from 18 January, 2017, the present application is within time - Application admitted - moratorium declared.
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