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TMI Blog2019 (10) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... ency and Bankruptcy Code, 2016 read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, by inter alia seeking to initiate Corporate Insolvency Resolution Process (CIRP) in respect of M/s. Ecolibrium Energy Private Limited ('Respondent/Corporate Debtor') on the ground that the Corporate Debtor committed a default for total outstanding amount of Rs. 7,03,337.80/- vide invoice no. 10000793 dated 17.10.2015. 2. Brief facts of the case, as mentioned in the Company Petition, are as follows: (1) M/s. Amtech Electronics (India) Limited ('Petitioner/Operational Creditor') is a Company incorporated and having its address at E-6, G I D C Electronic Zone, Gandhinagar, Gujarat - 382 028. The Company inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y inter alia contending as follows: (1) The Application is bound to be dismissed on the ground that the said claim is disputed by the Corporate Debtor and is liable to be dismissed under Section 9 (5) (ii) (d), wherein the Corporate Debtor has issued a notice of dispute to the Operational Creditor, thereby disputing the claim of the Operational Creditor. (2) The Corporate Debtor has at length elucidated the dispute between the Parties in its reply notice dated 23.08.2018 and it is well established by the Hon'ble Supreme Court that a pre-existing dispute, brought to the notice of the Operational Creditor in response to the Demand Notice, would be sufficient ground for the rejection of its Application. (3) The Corporate Debtor had long ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the false commitments/assurances provided by the Operational Creditor. The officers of the Corporate Debtor also requested for a meeting with the top management of the Operational Creditor for discussing its concerns. (6) The Corporate Debtor in the aforesaid emails, inter alia, bought the following to the notice of the Operational Creditor: a. The Operational Creditor was facing issues pertaining to delivery time, as a result of which the Corporate Debtor was liable to pay late delivery charges to its clients and the working capital of the Corporate Debtor was diminishing due to it. b. The end Client/Customer of the Corporate Debtor suffered production loss due to non-availability of the service engineer of the Operation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the date of delivery of the products and requested the Operational Creditor not to present the cheque unless all previous complaints were resolved. The cheque was handed over as a security but not against any legal debt or liability. (10) The Corporate Debtor again faced several hardships with the products supplied by the Operational Creditor and inspite of raising complaints repeatedly, the services provided were not within the agreed timelines and the Corporate Debtor was completely disappointed with the services of the Operational Creditor. That in view of the inferior quality of services provided by the Operational Creditor, the Corporate Debtor's client production cycle was disturbed and was thus forced to inform their bankers to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which amounts to Rs. 33,94,807.61 (approx). (13) The Corporate Debtor suffered huge losses and bad reputation in the market owing to the poor quality of the products supplied by the Operational Creditor and the clients of the Corporate Debtor retained payments amounting to Rs. 19,75,515.00 and accordingly the Corporate Debtor suffered business loss worth Rs. 1,00,94,109.00 as certain clients of the Corporate Debtor cancelled the order and returned the goods. The Corporate Debtors further suffered loss amounting to Rs. 4,72,861.00 towards handling costs, thereby totaling to an amount of Rs. 1,25,42,485.00 as on 31.08.2018, which the Corporate Debtor is liable to recover from the Operational Creditor. 5. Heard Ms. Kavitha N., learned Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application." 10. Therefore, in light of the law stated above, we note that the Petitioner has filed the instant Petition on 07.01.2019 which is more than 3 (Three) years from the date of default. Further, the Petitioner has neither prayed for condonation of delay under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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