9911796707
TMI Blog2018 (7) TMI 2089X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. 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 Dahej, Gujarat and entrusted with him the first work order for the contract amount of Rs. 10,25,10,275/- on 04.08.2011. The Applicant further averred that he started executing the works earnestly and raised various invoices in terms of the above work order. However, the payments were released by the Respondent in piecemeal and not as per the bills raised. On 09.05.2012 the Respondent foreclosed the works for reasons best known to him and paid only Rs. 3,67,27,396 against the total amount of Rs. 4,22,20,877/- for which bill was raised by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 both the counsels argued their case and orders were reserved. 6. In the absence of reply filed by the Respondent, the reply given by the Respondent to the Applicant on the demand notice issued assumes significance. The Respondent has raised the following points: a. According to the Applicant the last instalment was recorded on 25.10.2013, after which no payment has been received and no acknowledgement has been made and thus, the demand is time barred and the notice is sent beyond the period of limitation. b. No amount whatsoever is due or payable to the Applicant by the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very Appellate Tribunal, as the case may be. " 10. Although the Hon'ble Supreme Court has stayed the Hon'ble NCLAT's order in Speculum Plast Pvt. Ltd. v. PTC Techno (P.) Ltd. [2017] 88 taxmann.com 83 (NCL-AT) which made the Limitation Act, 1963 inapplicable to the Code, it is important to note another order of the Hon'ble NCLAT passed in Black Pearl Hotels Pvt. Ltd. v. Planet M Retail Ltd. [2018] 91 taxmann.com 387 (NCL-AT) which held as follows: "In this case even if it is accepted that the Limitation Act, 1963 is applicable for initiation of Corporate Insolvency Resolution Process, in such case Article 137 of the Limitation Act, 1963 will be applicable, which is quoted below: Description of application Period of limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly to the present application. Thus, no material has been placed before this Tribunal by the Respondent to counter the claim made by the Applicant in the present application. 13. In the circumstances mentioned above and since the Corporate Debtor has failed to file a response before this Tribunal and a default of debt due to the Operational Creditor is in existence, remaining unsatisfied, this Tribunal is of the considered view that this petition requires to be admitted and that CIRP process is required to be initiated against the Corporate Debtor. 14. Since the Applicant has not named the Insolvency Resolution Professional, this Tribunal based on the list furnished by Insolvency and Bankruptcy Board of India appoints Mr. Rajendra Prasad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ets and Enforcement of Security Interest Act, 2002; d. The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the respondent. 15. However, during the pendency of the moratorium period in terms of Section 14(2) and 14(3) as extracted hereunder: (2) The supply of essential goods or services to the respondent as may be specified shall not be terminated or suspended or interrupted during moratorium period. (3) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. 16. The duration of the period of moratorium shall be as provided in Section 14(4) of IBC, 2016 and for read ..... X X X X Extracts X X X X X X X X Extracts X X X X
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