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TMI Blog2019 (7) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... rs Ltd.' filed application under Section 9 of the Insolvency and Bankruptcy Code, 2016 ("I&B Code" for short) against 'Tech Sharp Engineers Pvt. Ltd.'- ('Corporate Debtor') claiming that a sum of Rs. 38,84,709/- has become due and payable on 28th February, 2013. The Adjudicating Authority (National Company Law Tribunal), Single Bench, Chennai, by impugned order dated 2nd January, 2019 rejected the same on the ground that the claim is time barred with following observations: "Counsels for both the parties are present. As seen from the Order dated 18.12.2018, last the final opportunity was granted to the Operational Creditor for seeking instruction from his client. However, the counsel for the Operational Creditor again prayed for tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel appearing on behalf of the Respondent placed reliance on decision of the Hon'ble Supreme Court in "B.K. Educational Services Pvt. Ltd. v. Parag Gupta and Associates─ (2018) SCC OnLine SC 1921", wherein the Hon'ble Supreme Court observed and held: "48. It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. "The right to sue", therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by him in law. In such case, the application under Sections 9 cannot be entertained. 10. To decide the aforesaid issue, we have noticed the facts which were also brought to the notice of the Adjudicating Authority by the Appellant- ('Operational Creditor') and recorded in Part IV- 'Particulars of Operational Debt' of Form-5, as noticed below. 11. The 'Corporate Debtor' placed work orders on 24th October, 2011 with the 'Operational Creditor' for 150 MT Manitowoe M 400 C Crane. After execution of the work at the designated site on the designated date, the Appellant- ('Operational Creditor') raised different invoices from time to time for the services rendered by it. 12. According to the Appellant, a sum of Rs. 88,87,900/- was payable, ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment either from the 'Corporate Debtor' or from the 'IOCL' in clearing the outstanding dues of the 'Operational Creditor', the Appellant issued a statutory notice under Sections 433 and 434 of the Companies Act, 1956 on 24th May, 2014 to the 'Corporate Debtor' calling upon to pay a sum of Rs. 38,84,709/- together with interest. The amount having not paid, the Appellant filed a winding up petition/ Company Petition before the Hon'ble High Court of Judicature at Madras on 4th July, 2015 which was registered and numbered. 16. During the pendency of the winding-up petition before the Hon'ble High Court of Judicature at Madras, the 'I&B Code' came into force since 1st December, 2016. Section 434 of the Companies Act, 2013 was substituted by El ..... X X X X Extracts X X X X X X X X Extracts X X X X
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