TMI Blog2020 (5) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... -6-2016. The payment under the invoice is within 60 days. Therefore, limitation to start after expiry of 60 days. The petition is filed on 24-7-2019 is therefore, within the period of limitation. Demand notice was not issued and served on the Corporate Debtor. The petition is in order and is liable to be admitted - application admitted - moratorium declared. - CP(IB) NO. 515/9/HDB/2019 - - - Dated:- 20-12-2019 - Ratakonda Murali, Judicial Member And Narender Kumar Bhola, Technical Member For the Petitioner : Dr. Pradeep G. Tulsian, PCA For the Respondent : P. Anil Mukherjee, Adv. ORDER RATAKONDA MURALI, JUDICIAL MEMBER. 1. The Petitioner M/s. S.S.V. Fab Industries Private Limited (hereinafter referred as Petitioner/Operational Creditor) has filed the present petition against M/s. SNS Starch Limited (hereinafter referred as Respondent/Corporate Debtor). It is alleged by the Petitioner that the Corporate Debtor had defaulted in paying of ₹ 22,58,154/- (Twenty Two Lakhs, fifty Eight Thousand, One Hundred and Fifty Four Rupees only) i.e. Principal Amount ₹ 12,29,300/- adding ₹ 10,28,854/- interest @ 24% PA from 27-10-2015 to 22-7- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pay ₹ 22,58,154/- including interest at 24% PA. 3. The averments made in the Counter are as follows: I. It is averred by the Respondent that the Petition is barred by limitation. The transactions were from 27-10-2015 to 11-6-2016. Admittedly part payment was done on 23-5-2015, later no payments were done by the Respondent. The Petition was filed either on or after 22-7-2019, when three years were completed by 10.06.2019. II. It is averred that the material supplied by Petitioner has not been upto the standards of quality agreed between Petitioner and Respondents. The quality of sacks in which the material was packed for supply to domestic and international markets, was of poor quality and the sacks used to tear while in shifting and transportation and the material used to spill over and damaged the surroundings apart from the fact that the same material could not be used again. Thus, the company suffered huge loss because of bad quality of products supplied by the Petitioner. The same has been conveyed to the Petitioner at various occasions and the Petitioner also assured the Respondent that it would give a credit notes in respect of the quantity spoiled and reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents. The last invoice was 11-6-2016 and 60 days will expire on 9-8-2016. The limitation starts from the period allowed for payment and as such the present Petition filed on 24-7-2019 is within limitation. In this connection, the Learned CA also relied on section 18(1) of Limitation Act and contended that limitations starts from the date of acknowledgement. The part-payments is acknowledgement of debt and therefore, the present petition is not barred by limitation. 8. The Learned CA also contended that the Petitioner was demanding through Whatsapp, the Corporate Debtor to pay the amount. The Whatsaap messages are shown at Page Nos. 18 19 of the rejoinder. Thus, the Learned CA would contend the Petition is within the period of limitation and there is no pre-existing dispute. Even in the reply to the Whatsapp messages, the Corporate Debtor undertakes to pay the outstanding balance. The Learned CA would contend that the Petition is not barred by limitation and that Applicant is able to establish existence of operational debt and default. As such, the Petition is liable to be admitted. 9. On the other hand, it is the case of Corporate Debtor that there was a pre-existing disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor has not filed the alleged voucher/invoice dated 21-9-2018 under which inter-State sales was stated to have been conducted. 13. The next contention raised by Learned CA for Operational Creditor that payments to be made within 60 days from the date of raising of invoices. The contention of the Learned CA that last invoice was dated 11-6-2016 and payment ought to have been made by 10-8-2016 which is the time allowed and limitation starts thereafter. It is true, the last invoice, even according to Corporate Debtor, was on 11-6-2016 and time for payment is 60 days which would expire by 10-8-2016 and this Petition was filed on 24-7-2019 and therefore Petition is not barred by limitation and it is well within three years from the expiry date of payment including the grace period allowed as per invoice. Even otherwise, the ledger shows some payments. Of course it is the duty of Operational Creditor to file receipts raised for making payments to the Corporate Debtor. However, the limitation starts from the expiry of period given in the purchase order. We have seen the purchase order and invoice attached to written submissions cum rejoinder. 60 days' time is given for payment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted during moratorium period. (3) That the provisions of sub-section (1) of section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (4) That the order of moratorium shall have effect from 20.12.2019 till the completion of the Corporate Insolvency Resolution Process or until this Bench approves the Resolution Plan under sub-section (1) of section 31 or passes an order for liquidation of Corporate Debtor under section 33, whichever is earlier. (5) The Petitioner is directed to pay a sum of ₹ 1,00,000/- (Rupees One Lakh Only) to the interim resolution professional to meet out the expenses to perform the functions assigned to him in accordance with regulation 6 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. This shall, however, be subject to adjustment by the committee of creditors as accounted for by interim resolution professional and shall be paid back to the petitioner. (6) That the Public announcement of Corporate Insolvency Resolution Process shall be made immediately as specified under section 13 of the code. Accordingly, this Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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