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M/s. PCI Limited Versus M/s. Ashimori India (P) Limited

2017 (11) TMI 698 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI

Corporate Insolvency Resolution Process -proof of existence of proof - period of limitation - Held that:- Even though the provisions of Limitation Act, 1963 may not be applicable to IBC, 2016 yet the petition suffers from doctrine of delay and laches as the silence on the part of the petitioner to enforce its claim for a period of more than 5 years without approaching any judicial Forum defeats the claim and the petitioner cannot take recourse or umbrage to the provisions of IBC, 2016 with a vie .....

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TRIBUNAL, NEW DELHI ) wherein at Paragraph 32 of the said judgment, it has been held that demand notice under Section 8 on behalf of the Operational Creditor cannot be issued by any person in the absence of any authority of the Board of Directors, and holding no position with or in relation to the Operational Creditor. However, in the present instance, no such authorization to issue such a notice by the legal Counsel on behalf of the Operational Creditor has been produced before this Tribunal by .....

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be an Operational Creditor against the Respondent/Corporate Debtor on the basis that a sum of ₹ 20,50,385/- is due and outstanding payable and is in default and under the circumstances, the Corporate Insolvency Resolution Process (CIRP) is required to be initiated. The facts in brief as averred in the petition are as follows : (i) That the Respondent issued a Purchase order dated 28.3.2017 to the Operational Creditor for the supply & installation of 60 KWP Off-grid top Solar Photovolta .....

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ceived from the respondent/Corporate Debtor. (iii) In view of the non-payment, it is claimed by the petitioner that a demand notice U/s. 8 of IBC Code, 2016 read with attendant rules was sent to the Corporate Debtor on 20.6.2017 calling for the payment of amount in default. However, instead of making payment, it is stated by the petitioner that Respondent sent a reply dated 7.7.2017 through its Counsel. In view of the non-payment of the amount in default, it is averred by the petitioner that an .....

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ement of account for the period 1.4.2012 to 31.3.2013 is annexed as Annexure-A striking a balance of ₹ 20,50,385/- which is shown as due and payable from the Debtor/respondent. A copy of the purchase order placed by the Corporate Debtor as well as invoice as raised by the petitioner/Creditor has also been annexed. A reply as sent by the Respondent, being the notice of dispute dated 7.7.2017 has also been filed. 2. The above matter was listed on 23.8.2017 and during the course of hearing, d .....

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relation to the maintainability of the Company Petition : (a) the respondent contends that in view of the pre-existence of a dispute, the petition, as such, is not maintainable. (b) In this regard, it is pointed out that on 5.5.2017, a notice was sent to the respondent Company for its winding up in relation to the amount payable under the Purchase order dated 23.2.2011 and that the said winding up notice was also replied to wherein the payment of ₹ 20,50,385/- being the amount claimed in d .....

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d by the petitioner. (c) Despite the above communication sent to the applicant/petitioner, no efforts had been taken by the Creditor/petitioner to put the same in order which deprived the respondent Company from obtaining subsidy amount in full, due to which, the Respondent/Debtor is unable to clear the amount as claimed by the petitioner/applicant. (d) On the above basis, it is claimed that there is a pre-existence of dispute even prior to the sending of notice U/s. 8 of IBC Code, 2016 , being .....

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he decision of the Hon ble NCLAT rendered in Uttam Galva Steels Limited v. DF Deutsche Forfait AG Anr. (f) Further, it is also pointed out that the provisions of Section 9(3)(b) of IBC, 2016 has not been complied with as in terms of said Section the applicant was required to furnish an affidavit to the effect that there is no notice of dispute in relation to the unpaid operational debts by the Corporate Debtor and the same has not been furnished. (g) It is also pointed out that the provisions of .....

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ng been granted to the petitioner vide order dated 23.8.2017, the application it is represented on the part of the respondent/Debtor is required to be rejected in terms of provisions of Section 9(5) of IBC, 2016. Another issue which has also been raised is in relation to the debt being barred by limitation as the amount which is claimed to be in default is said to be due even as per the statement of accounts of the petitioner since the year 2012-2013 and that the present petition has been filed .....

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r has been filed reiterating the contents of the petition and also stating that the applicant/petitioner has nothing to do with the Rajasthan Renewable Energy Corporation Limited nor for that matter in relation to the promised subsidy which is sought to be projected as ground for the denial of payment due to the petitioner. 4. Heard the oral submissions of the respective Counsels appearing for the parties in detail and perused the documents filed. It is seen from the typed set of documents filed .....

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ion Limited, providing Central Financial Assistance. 5. It is also seen from the E-mail dated 03.5.2013 filed along with the annexures annexed as Annexure-C (Colly) to the typed set of documents filed by the respondent that as early as in the year 2013, it has been brought to the notice of the petitioner that the respondent Company is failing to obtain the subsidy in view of the poor power generation due to the fault of inverter as the investigation has raised a query in relation to the power ge .....

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tion & commissioning of the plant even according to the admission of the petitioner was completed on 29.12.2011. 6. The above fact clearly discloses that the claim as made before this Tribunal is beyond the period of limitation of 3 years as the petitioner has failed to produce any evidence wherein subsequently, the respondent Company has acknowledged the liability or as to whether payments have been made in furtherance of acknowledgement of its liability owed to the petitioner. On the point .....

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unal. It is also required to observe in this connection the provisions of Section 60 (6) of IBC, 2016 which saves any suit or application by or against the Corporate Debtor, for which, an order of moratorium is in place, from operability of limitation, being the only specific instance where the hand of limitation is withheld. 7. However, in a judgment recently passed by the Hon ble NCLAT on 11th August, 2017 in the matter of Neelkanth Township & Construction (P.) Ltd. v. Unban Infrastructure .....

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and on any of the provision of I & B Code to suggest that the Law of Limitation Act, 1963 is applicable. The I & B Code, 2016 is not an Act for recovery of money claim, it relates to initiation of Corporate Insolvency Resolution Process. If there is a debt which includes interest and there is default of debt and having continuous course of action, the argument that the claim of money by Respondent is barred by Limitation cannot be accepted . 8. In relation to the aspect of limitation, th .....

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l kowtowing to the judgment of the Hon ble NCLAT refrains from discussing any further on the aspect of Limitation. 9. However, the non-applicability of Limitation Act, 1963 in view of the above cited judgment of Hon ble NCLAT will not absolve the petitioner from accounting for delay and laches as the Hon ble NCLAT in the case of Praveen Shankaralyam v. Elan Professional Appliances (P.) Ltd. and others in Company Appeal (AT) No.34 of 2016, dated 12-1-2017) has held that though the submission that .....

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ions of Limitation Act, 1963 may not be applicable to IBC, 2016 yet the petition suffers from doctrine of delay and laches as the silence on the part of the petitioner to enforce its claim for a period of more than 5 years without approaching any judicial Forum defeats the claim and the petitioner cannot take recourse or umbrage to the provisions of IBC, 2016 with a view to initiate CIRP to recover the amounts alleged to be due to it from the respondent Company. 11. In addition, we also find cre .....

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