TMI Blog2020 (3) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... dates, i.e., 13.08.2014, the three-year limitation in terms of article 137 of the Limitation Act, 1963, for filing the present proceeding ended on 12.08.2017, while the present petition was filed on 15.05.2018. This Petition is barred by limitation - Petition dismissed. - CP (IB) NO. 1763/MB/C-IV/2018 - - - Dated:- 12-12-2019 - Rajasekhar V.K., Judicial Member And Ravikumar Duraisamy, Technical Member Milli Murkudkar for the Applicant. Sangharsh V. Waghmare for the Respondent. ORDER Rajasekhar V.K., 1. This is a Company Petition filed under section 9 of the Insolvency Bankruptcy Code, 2016 (IBC) by Mahalaxmi Dyes Chemicals Limited ( the Operational Creditor ), a company within the meaning of section 2(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition); (ii) Invoice dated 27.03.2014 for a sum of ₹ 1,25,00,000/- (p.4 of the petition); (iii) Invoice dated 27.03.2014 for a sum of ₹ 1,25,00,000/- (p.4 of the petition); (iv) Invoice dated 27.03.2014 for a sum of ₹ 95,00,000/- (p.4 of the petition); (v) Invoice dated 28.03.2014 for a sum of ₹ 97,00,000/- (p.4 of the petition); and (vi) Invoice No. 8320 dated 07.08.2014 for a sum of ₹ 22,31,250/- (p.4 of the petition); Though the Operational Creditor has raised the above-mentioned invoices, the Operational Creditor has attached only one invoice to the Petition as well as to the Demand Notice. This invoice is at p. 29 of the Petition. (b) The invoice provides for interest to be charged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or. The Operational Creditor also filed criminal complaints against the Corporate Debtor under section 138 of the Negotiable Instruments Act, 2002 (sic 1881) before the Chief Metropolitan Magistrate's Court at Andheri. Aggrieved by this, the Corporate Debtor filed Criminal Writ Petition before the Hon'ble Bombay High Court, which granted a stay in the matter. The matter is still pending (para 4 at page 2 of Written Statement on behalf of the Respondent); (c) The Operational Creditor had earlier filed two complaints in the space of six months against the Corporate Debtor before the Economic Offences Wing (EOW) for recovery of the amounts claimed in the present petition. The Operational Creditor failed to provide correct and legibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rstly, the date of default is alleged to be 26.03.2014 at p.4 of the Petition, which does not appear to be correct. There is only one invoice attached to the Petition, which is at p.29 of the Petition. This provides for a grace period of five days for payment. If we assume that the same grace period was available for the other four invoices also (which have not been attached either to the Demand Notice or the Petition), the dates of default work as follows: Sl. No. Invoice date Grace period for payment Date of default 1. Invoice dated 26.03.2014 5 days 01.04.2014 2. Invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -barred debt. 16. There is no proof of any acknowledgement of liability on the part of the Corporate Debtor or any payment made by the Corporate Debtor within the limitation period that may have the effect of extending the period of limitation within the meaning of section 18 or section 19, as the case may be, of the Limitation Act, 1963. 17. The Hon'ble Supreme Court, in the matter of B.K. Educational Services (P.) Ltd. v. Parag Gupta Associates [2018] 98 taxmann.com 213/150 SCL 293 has clearly laid down in para 27 as follows:- '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 attrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Limitation Act, 1963, for filing the present proceeding ended on 12.08.2017, while the present petition was filed on 15.05.2018. 20. In this view of the matter, we are of the considered opinion that this Petition is barred by limitation. 21. For the reasons stated above, the present Petition fails and therefore, the same is dismissed. 22. We make it clear that any observations made in this order should not be construed as expressing any opinion on merits. The right of the Petitioner-Operational Creditor before any other judicial forum and under any other law shall not be prejudiced on grounds of dismissal of the present petition by this Adjudicating Authority. 23. Let a copy of this order be communicated to the parties in ter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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