TMI Blog2018 (7) TMI 2089X X X X Extracts X X X X X X X X Extracts X X X X ..... as of this date. - CP-IB-158/ND/2018 - - - Dated:- 9-7-2018 - R. Varadharajan, Judicial Member And Dr. V.K. Subburaj, Technical Member Akshay Sharma, Adv. for the Applicant. N. Parshant Kumar, Adv. for the Respondent. ORDER 1. This an application filed by M/s RVR Projects Pvt. Ltd. against the Respondent company M/s Fernas Construction India Pvt. Ltd. invoking Section 9 of the Insolvency and Bankruptcy Code, 2016 ( the Code ) for the alleged default in paying the debt relating to the claims raised by the Applicant. 2. The Applicant has averred that the Respondent approached the Applicant to avail its services of piling works for integrated utilities off-site packages for a petrochemical complex situated at Dah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 demand notice was served to the respondent on 04.12.2017 and 05.02.2017 respectively through courier and speed post and he has filed the necessary proof for delivering the same. The Respondent had sent a reply through his lawyers denying its liability and hence the Applicant has filed this petition for initiation of Corporate Insolvency Resolution Process against the Respondent company. 5. Pursuant to the notices sent by the Applicant as per the directions of the Tribunal the Respondent's counsel marked his presence on 28.02.2018 and pleaded for more time to file his reply and 10 days' time was granted to the Respondent to file his reply. However, no reply was forthcoming from the Respondent. On the hearing dated 16.04.2018 bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the Limitation Act, 1963 is applicable to the Code or not has been laid to rest by the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018 published in the Official Gazette of India on 06.06.2018. The new ordinance has introduced a new provision Section 238A to the Code which makes the Limitation Act, 1963 applicable to the Code and reads as follows: 238A. The provisions of the Limitation Act, 1963 shall, as far as may be, apply to the proceedings or appeals before the Adjudicating Authority, the National Company Law Appellate Tribunal, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal, as the case may be. 10. Although the Hon'ble Supreme Court has stayed the Hon'ble NCLAT's order in Specu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is not barred by limitation as the right to apply under the Code accrued only on or after 1st December, 2016 and the application has been filed within three years from such date. 12. With regard to the other three issues raised by the Respondent in its reply to the demand notice namely, no amount is due and payable to the Applicant, no invoices have been annexed by the Applicant to the demand notice and the Applicant has failed to perform its part of the contract, it is seen that these claims are mere bald statements made by the Respondent in the reply to the demand notice. The Respondent has failed to substantiate any of the above claims in the reply to the demand notice and has entirely omitted to file a reply to the present applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 9(5) of IBC, 2016 moratorium as envisaged under the provisions of Section 14(1) and as extracted hereunder shall follow in relation to the Respondent: a. The institution of suits or continuation of pending suits or proceedings against the respondent including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; b. Transferring, encumbering, alienating or disposing of by the respondent any of its assets or any legal right or beneficial interest therein; c. Any action to foreclose, recover or enforce any security interest created by the respondent in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of IBC, 2016 to meet out the expenses to perform the functions assigned to him in accordance to Regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 18. Based on the above terms, the Application/Petition stands admitted in terms of Section 9(5) of IBC, 2016 and the moratorium shall come in to effect as of this date. A copy of the order shall be communicated to the Operational Creditor as well as to the Respondent above named by the Registry. In addition a copy of the order shall also be forwarded to IBBI for its records. Further the IRP above named who is figuring in the list of Resolution Professionals forwarded by IBBI be also furnished with copy of this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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