TMI Blog2017 (11) TMI 1648X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 434 of the Companies Act, 1956 was issued to the Respondent only on 25.11.2013. It is also on record that the Respondent vide its letter dated 19.12.2013 has raised the issue of limitation and it was not disputed by the Applicant by placing any reply or any other material to show how the claim is within limitation. In view of this, I conclude that there is dispute exists between the parties in relation to this claim, and the petition is also barred by limitation. Therefore, I answer the issues (i) and (ii) above in affirmative. Applicant has not made out any case for invoking the jurisdiction of this Adjudicating Authority under the provisions of I & B Code, 2016. - Petition dismissed. - TCP/170/ (IB)/CB/2017 - - - Dated:- 10-11-2017 - Hon'ble Member(J) Mohd Sharief Tariq and Hon'ble Member(T) S.Vijyaraghavan ORDER Under Consideration is a Company Petition filed by Shri Maruti Electrical Enterprises Limited (in short, 'Petitioner/Operational Creditor') against M/s. SAS Realtors Private Limited (in short, 'Respondent/Corporate Debtor') under section 433 of the Companies Act, 1956 before the Hon'ble Madras High Court and stood t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62,48,709/-. This included additional work and materials supplied of which the petitioner had received a sum of ₹ 29,09,530/- and the then director, Mr. Natarajan accepted the Bill and instructed the petitioner to vacate the site following which the petitioner vacated the site after informing the site engineer in the month of June 2009 leaving behind a few surplus materials. 4. The learned Counsel for the petitioner submitted that thereafter a meeting was convened by the site engineer in the presence of respondent's director and electrical consultant wherein the petitioner requested to settle the amounts. The petitioner also repeatedly requested the respondent to settle the Bill amounts through telephonic communication, e-mails and even made personal appearance, but in vain. The petitioner, after making several requests for settling the dues with the respondent and having waited for a long period of time for his legitimate dues, sent two notices dated 13.04.2010 and 27.06.2011 calling upon the respondent to make the payment of the outstanding dues of ₹ 70,79,060/- including the interest @ 24% per annum and thus claimed to be an Operational Creditor under the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat only a sum of ₹ 1,31,302/-was payable to the petitioner. However, to the shock and surprise to the respondent, the petitioner sent a letter dated 27.06.2011 to the respondent making various unsubstantiated and baseless allegations and demanded a sum of ₹ 33, 39,179.70/- along with interest @ 24% per annum which neither tallied with Running Account Bill No. 14 dated 13.08.2009 nor deductions made by the respondent as set out in the Bill Certificate dated 31.03.2009. 6. The learned Counsel for the Respondent further submitted that after more than four years from 31.10.2009, the respondent received a letter from the petitioner through counsel, reproducing the contents of the earlier letter dated 27.06.2011 and claiming to be a statutory notice under section 433(e) of the Companies Act 1956. It is submitted that the respondent replied to the said letter disputing the claim for ₹ 70, 79,060/- made by the petitioner and further informed the petitioner that the claim is barred by limitation and the respondent is not liable to pay any amount to the petitioner. The learned counsel for the respondent reiterated that the respondent had been consistently raising disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bitral tribunal or a court for upto three years, such persons would be outside the purview of Section 8(2) leading to bankruptcy proceedings commencing against them. Such an anomaly cannot possibly have been intended by the legislature nor has it so been intended. 33. This being the case, is it not open to the adjudicating authority to then go into whether a dispute does or does not exist? 34. It is important to notice that Section 255 read with the Eleventh Schedule of the Code has amended Section 271 of the Companies Act, 2013 so that a company being unable to pay its debts is no longer a ground for winding up a company. The old law contained in Madhusudan (supra) has, therefore, disappeared with the disappearance of this ground in Section 271 of the Companies Act 40. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5) (2) (d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded with under the provisions of the I B Code, 2016. It is also on record that the Respondent has disputed the claim before the High Court. In my considered view, since the petition has been transferred to this Tribunal on its constitution, and since it is not abated, the dispute raised by the Respondent is still continuing and it cannot be ignored for the reason that the present proceeding is being considered under the provisions of the I B Code. Further it is also on record that the Applicant has submitted the final bill certificate to the Respondent in the month of February 2009 and the notice under section 434 of the Companies Act, 1956 was issued to the Respondent only on 25.11.2013. It is also on record that the Respondent vide its letter dated 19.12.2013 has raised the issue of limitation and it was not disputed by the Applicant by placing any reply or any other material to show how the claim is within limitation. In view of this, I conclude that there is dispute exists between the parties in relation to this claim, and the petition is also barred by limitation. Therefore, I answer the issues (i) and (ii) above in affirmative. 12. Therefore in view of the above obs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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