TMI Blog2019 (1) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... to filing of this petition, which is on August 20, 2018 whereas limitation expired on May 4, 2018. Hence this claim is barred by the limitation. The reply of corporate debtor to the demand notice cannot be taken as acknowledgment of the debt. To the contrary, the corporate debtor has denied the claim calling it false and reiterated their counter claim of ₹ 1,17,80,951 on account of extraordinary delays in delivery/non-delivery along with interest conveyed vide e-mail dated July 23, 2015. Therefore, it is held that the claim is time barred. The documents on record that the supplies were delayed not only as per original supplies schedules but also as per the mutually agreed upon revised schedule. The respondent has placed on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olution process against the respondent/corporate debtor company M/s. Ginni Filaments Ltd. 2. The applicant/operational creditor is company limited by shares, incorporated on July 19, 1990 under the Companies Act, 1956 with its registered office at SCO 191192 Sector 34-A Chandigarh-160 022, India having CIN No. L17115CH1990PLC010566. The applicant is producer of yarns for knitting and weaving in India wide variety of its products includes raw white yarn, fancy yarn, fabric knitted fashion, etc., the applicant stated that Mr. Khushvinder Singhal, GM (Legal) is authorized to file this application (board resolution is annexed as annexure II(g)) 3. The respondent/corporate debtor M/s. Ginni Filaments Ltd., is a company limited by shares ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent (copy of demand notice in Form 3 annexed as annexure AI). (iv) The applicant further stated that the respondent never raised any objection with regard to quality or quantity of the goods so supplied. It is only through the reply to the demand notice dated April 27, 2018 the corporate debtor raised such issues (copy of reply to demand notice is annexed as annexure II(d)) (v) Hence, the present application. 5. The corporate debtor objected to the present application and filed a counter affidavit stating as under : (i) The respondent had a smooth business relationship with the applicant since 2002, relating to supply of melange yarn but the applicant failed to maintain the smooth and trustworthy business relationship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectively). (vi) The respondent emphasised on pre-existing dispute and also that the claim is also barred by limitation. 6. The applicant filed rejoinder stating that : (i) The contention of the respondent denying legitimate overdue payments and claiming pre-existing disputes is not justified. Various communications regarding deliveries/overdue payments do not reflect the existence of dispute. (ii) The reschedulment of delivery of material was mutually agreed upon and the respondent had accepted and consumed the material sup plied by the appellant without any dispute. (iii) The respondent confirmed order on January 31, 2015 and just after 12 days started creating pressure for delivery. The applicant repeatedly requested to cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the demand (e-mail communication annexed with petition as annexure 3A). Further, the corporate debtor also had to cancel the balance quantity on the applicant due to inordinate delay (e-mail conversation annexed as annexure 3B). 9. Counsel for the respondent also stated that all the invoices which have been shown in default are time barred as the last transaction was made in the account on May 4, 2015 when the payment of ₹ 15,72,977 lakhs was released to the applicant. 10. Counsel for the applicant denied the contention of the respondent and stated that the amount claimed by the applicant is not time barred and has put reliance on e-mail dated June 25, 2015 when demand for clearance of overdue amounts was raised by the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 13. Further, it is relevant to quote direction given by hon'ble Supreme Court in the matter of Mobilox Innovations P. Ltd. v. Kirusa Software P. Ltd. [2017] 205 Comp Cas 324 (SC) (Civil Appeal No. 9405 of 2017) (page 373) : 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)(ii)(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 'existence' of a dispute or the fact that a suit or arbitration proceeding relating to a dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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