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TMI Blog2019 (7) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... the pleadings including the documents placed on file. 3. The Operational Creditor has claimed an amount of Rs. 1,83,59,520/- as principal amount along with interest @ 21% interest per annum till 31.12.2017, totalling Rs. 2,82,99,314/- as outstanding against the Corporate Debtor, which the Corporate Debtor has failed to pay. 4. The brief facts of the case are that the Operational Creditor is engaged in the business of Marketing of Textiles Machinery and the Corporate Debtor is engaged in the business of Manufacturing of Textile Machinery and Accessories. The Corporate Debtor appointed the Operational Creditor as an agent to market initially in Northern India for sales and service of their products in the year 2007. Gradually, the Operational Creditor developed the market for slub products and core equipment etc., which made the Corporate Debtor No.1 seller in India. Thereafter, the Corporate Debtor offered agency services during December, 2013 to market to South India. Buoyant with the sales generated through the Operational Creditor, the Corporate Debtor decided to start manufacturing in India and formed a Company Datalog Pinter Technologist Pvt. Ltd., which is now Pinter FA.NI A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inued till 05.09.2014. 8. The details of the services rendered by the Operational Creditor to the Corporate Debtor and the commission became due by the Corporate Debtor are given in the Tabular form which is placed at page 16 of the typed set filed with the Application which reflects that the balance amount of Rs. 1,83,59,520/- is due to the Operational Creditor. The Operational Creditor has sent the Legal Notice dated 04.06.2015 to the Corporate Debtor claiming Rs. 1,83,59,520/- from the Corporate Debtor towards the unpaid commission to it. Copy of Notice is placed at pages 87 to 91 of the typed set filed with the Application to which the Corporate Debtor has given Reply on 02.07.2015 which is placed at pages 92 to 97 of the typed set filed with the Application. In the Reply, it has specifically been stated that the Operational Creditor is entitled to a commission of Rs. 46,96,560/- which will be payable only upon securing and passing on the payment of Rs. 1,42,87,504 due and payable from the customers. It has further been stated by the Corporate Debtor in its Reply that the statement of orders procured, commission payable thereof and the balance outstanding to be realized from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itor. 12. The second objection that has been raised by the Counsel for the Corporate Debtor is that the Application is barred by limitation. Rebutting the objection raised by the Counsel for the Corporate Debtor, the representative for the Operational Creditor has submitted that in reply to the Legal Notice of the Operational Creditor dated 04.06.2015, the Corporate Debtor on 02.07.2015 has acknowledged the debt and the instant Application has been filed on 27.03.2018 which is within the period of limitation. The submission of the representative for the Operational Creditor is supported with the document, so the instant Application is not hit by the law of limitation. Therefore, the objection that the Application is barred by limitation is spurious because in its reply notice dated 02.07.2015, the Corporate Debtor has clearly admitted the claim of the Operational Creditor and the Application has been filed within the period of limitation as stated above. Hence, the objection taken by the Counsel for the Corporate Debtor stands rejected. 13. It has been noted during the course of argument that the Counsel for the Corporate Debtor at the first instance has denied the Reply dated 02 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicant cannot be an 'Operational Creditor'. Repudiating the submissions made by the Counsel for the Corporate Debtor, representative for the Operational Creditor has referred to the Audited Financial Statement of the Corporate Debtor for the year ending 31.03.2017 which clearly establishes the fact that commission is shown as an expenses item; trade payables are shown in balance sheet; the schedules do not show any debtors outstanding or bad or doubtful. The Financial statement is placed at Pages 5 to 74 of the typed set filed with Rejoinder. Therefore, the defence raised by the Corporate Debtor is contrary to the said record. 17. The Counsel for the Corporate Debtor has finally referred the judgment in B.K. Educational Services (P.) Ltd. vs. Parag Gupta And Associates, reported in 2018 (6) CTC 438 in order to support his arguments, However, the said ruling is not applicable to the facts and circumstances of the case on hand, as has been discussed in the preceding paragraphs. 18. Therefore, the submissions made by the representative for the Operational Creditor are plausible. The defence raised by the Corporate Debtor is spurious and misleading and the same stands rejected. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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