TMI Blog2017 (8) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the view that defence taken in respect to variation of the amount, have no sense after taking the explanation given by the Petitioner in the Company Petition into consideration. For having the Corporate Debtor admitted the liability except saying adjustments should have been made against the invoices first in point of time, this Bench hereby holds that it is a fit case for admission. Accordingly, this Petition is admitted declaring Moratorium with directions. - T.C.P. NO. 183/I&BP/NCLT/MAH/2017 - - - Dated:- 17-8-2017 - MR. B. S. V. PRAKASH KUMAR AND MR. V. NALLASENAPATHY, JJ. For The Petitioner : Mr. Prashant Chandhe Advocate ORDER Per B.S.V. Prakash Kumar, Member (Judicial) It is a Company Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days in some invoices and 90 days in some other invoices as credit period, since the credit period is variant from one invoice to another invoice, when this Petition has been filed, the Petitioner has taken uniform credit period of 90 days in respect to all the invoices against which claim has been made by the Petitioner herein. The Corporate Debtor made part payments on various dates, that is ₹ 1,00,000 on 29.4.2013, ₹ 1,00,000 on 1.7.2013, ₹ 2,00,000 in 17.7.2013, ₹ 1,27,249 on 1.11.2013, ₹ 1,72,751 on 1.11.2013, ₹ 95,600 on 2.4.2014, ₹ 1,00,000 on 30.4.2013, ₹ 99,930 on 24.6.2014, ₹ 1,00,070 on 24.6.2014, ₹ 75,000 on 31.7.2014, ₹ 1,00,000 on 5.9.2014, ₹ 7,093 on 17. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner that the debtor had no intention to disown the payment that might be contractually and lawfully payable to the Operational Creditor after reconciliation of the accounts. The company further says in its reply notice that they could not make payments on time owing to the delay happening in realizing monies from the ongoing projects as well as due to severe recession happening to Indian Companies. 5. However, there being no payments from this Corporate Debtor, this Petitioner finally filed winding up Petition before the Hon ble High Court of Bombay on 12.4.2016. As we said earlier, for there being jurisdictional transfer in respect to this subject matter, this Petition has come before this Bench. Form-5 has been filed giving all details ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this application is liable to be dismissed. 7. Though the Corporate Debtor is not present today, since reply from their side is present, taking limitation point for dismissal of this case, let us see as to whether the defence of the debtor is tenable or not. 8. The Petitioner Counsel has made submission that, in accordance with section 60 of the Contract Act, where the debtor has omitted to intimate, and there are no other circumstances indicating to which debt the payment to be applied, the Creditor has every right to apply and adjust the part payments at his discretion to any lawful debt actually due and payable to the Creditor from the Debtor, whether the recovery is or is not barred by time of law in force for the time as to the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016. 10. Nonetheless, this Corporate Debtor has not filed by material paper showing that there was an understanding between the Petitioner and the Corporate Debtor to adjust part payments against the invoices first in point of time, it was not even stuck to the debtor mind until before filing reply before this Bench. 11. According to Section 60 of the Contract Act, 1872, there must be an indication from the Debtor side saying that the part payments should be adjusted to a particular debt owed to the Creditor. Here, no such intimation or indication existing to say that part payments should be adjusted to the invoices first in point of time, therefore, this Bench has not found any merit in the defence set-up by this Corporate Debtor. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in Company Petition, we are of the view that defence taken in respect to variation of the amount, have no sense after taking the explanation given by the Petitioner in the Company Petition into consideration. 13. For having the Corporate Debtor admitted the liability except saying adjustments should have been made against the invoices first in point of time, this Bench hereby holds that it is a fit case for admission. Accordingly, this Petition is admitted declaring Moratorium with directions as mentioned below: i) That this Bench hereby prohibits the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
