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2020 (10) TMI 584 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - Time Limitation - principles of res-judicata - quantum of ineterest. Time Limitation - HELD THAT:- The date of default is taken to be 07.02.2013, since in terms of the conditions mentioned in the invoice, interest would be charged if payment is not made within 30 days - This claim pertains to transactions in the financial year 2012-2013, therefore, the question of limitation must be considered - Time which needs to be excluded from calculation of Limitation period in accordance with section 14 of the Limitation Act, 1963:- (a). Time spent in proceedings before the Hon'ble Bombay High Court (Date on which Winding up petition was filed, i.e., 15.12.2014 to Date on which Company Petition was transferred to this adjudicating authority, i.e., 1.04.2017): 779 days (b). Time spent between the transfer of file and the date on which Form 5 was filed with this authority, in terms of the notification number GSR (E) dated 29.06.2017 ibid (1.02.2017 - 21.06.2017): 140 days (c). Time spent in proceedings before this Adjudicating Authority (Date on which Form 5 was filed 21.06.2017 to Date on which Abatement order was passed 03.10.2018): 469 days. Thus, after exclusion of time of 1,388 days (time spent in proceedings before the Hon'ble Bombay High Court and before this Adjudicating Authority), a period of 228 days prevails before limitation period of 3 years come to an end as per the provisions of Art. 137 of the Limitations Act - the petition filed by the Operational Creditor is within limitation. Principle of res judicata - HELD THAT:- It is observed that the order dated 03.10.2018 by the Adjudicating Authority, by which the previous proceeding abated, grants the Operational Creditor liberty to initiate a fresh proceeding as per the provisions of IBC. Therefore, that order which noted the abatement in terms of the notification number GSR (E) dated 29.06.2017 ibid, did not decide on the merits of the case. Therefore, the principles of res judicata are not satisfied and hence, this limb of the arguments advanced on the part of the Corporate Debtor deserves to be rejected. Pre-existing dispute - HELD THAT:- The Corporate Debtor claims that there existed a dispute relating to the quality of goods supplied and hence no payment for the same had been made. No correspondence has been placed before this Adjudicating Authority regarding the dispute about quality and quantity of supplies - this defence on the part of the Corporate Debtor also deserves to be rejected. Arbitrary and excessive interest at 24% per annum - HELD THAT:- Claim about excessive interest cannot be countenanced at this stage long after the invoices were received and acknowledged by the Corporate Debtor. The Petition made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is more than minimum amount of one lakh rupees stipulated under section 4(1) of the IBC. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor - Petition admitted - moratorium declared.
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