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2020 (7) TMI 235 - 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 - HELD THAT:- The application is filed three years beyond the date of last Invoice as well as from the date of last payment. There was lot of E-mail correspondence with the Corporate Debtor. Of course, the Operational Creditor filed E-mail correspondence done by it with the Corporate Debtor at pages 46-66 of the Paper Booklet. Such E-mail correspondence is one-sided, viz. it emanates from the Operational Creditor without any acknowledgement in the form of reply from the Corporate Debtor. To constitute an acknowledgement, there must be E-mail reply from the Corporate Debtor to the Operational Creditor. Surprisingly, there is no reply by the Corporate Debtor through E-mail acknowledging the balance payable, to E-mail correspondence. Even otherwise, E-mail correspondence ended in February 2015. However, the application is filed on 16-11-2018. Thus, the application is beyond three years from the date of last E-mail correspondence with the Corporate Debtor. Thus, the application is barred by limitation. No balance sheet of the Corporate Debtor is filed by the Operational Creditor. Burden lies on the Operational Creditor to prove the debt alleged is appearing in the Books of Account of the Corporate Debtor. No such material is placed for the Tribunal to come to conclusion that the alleged debt is appearing in the Books of Account of the Corporate Debtor. In absence of any such evidence, conclusion cannot be arrived at basing on the material available before the Tribunal. It is very clear that the application is barred by limitation under Article 137 of the Limitation Act. Even otherwise, there was no reply to the Demand Notice by the Corporate Debtor. Had it been true that pending works were yet to be attended to by the Operational Creditor, then the Corporate Debtor would have given appropriate reply to the Demand Notice issued under section 8 of the I&B Code. Surprisingly, there was no reply alleging that pending work is yet to be completed. Therefore, it cannot be said that there was any pre-existing dispute and work was incomplete. Even though there was no prior dispute, yet the application is patently barred by limitation and as such the application cannot be admitted and is liable to be rejected - Application dismissed.
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