TMI Blog2019 (6) TMI 1495X X X X Extracts X X X X X X X X Extracts X X X X ..... 8A of Insolvency Bankruptcy Code, 2016, which has come into force on 06.06.2018 - HELD THAT:- In view of the judgment of the Hon'ble Supreme Court, in STATE BANK OF INDIA VERSUS V. RAMAKRISHNAN AND ANR. [ 2018 (8) TMI 837 - SUPREME COURT] , a clarificatory amendment has retrospective effect. That apart, it is also a matter on record that there was pre-existing dispute on account of cancellation of work order by the respondent. That, letter dated 26.06.2014, addressed to the operational creditor by the corporate debtor goes on to show that due to delay in completion of the supply, installation and commissioning of Solar Photovoltaic Power Plant, the corporate debtor cancelled some orders and against such action the operational creditor had made a representation-cum-demand for justice petition on 05.08.2014. The Adjudicating Authority is of the considered view that the petition is not maintainable - Petition dismissed. - CP (IB) NO. 373/9/NCLT/AHM/2018 - - - Dated:- 26-6-2019 - Harihar Prakash Chaturvedi And Ms. Manorama Kumari, Judicial Member For the Appellant : Akshay Sapre, Abhijeet Swaroop, Sr. Adv. and Tirth Nayak, Advs. For the Respondent : Shobha Men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto a contract agreement dated 27.11.2012, with the corporate debtor for execution of the work as per the scope, specifications and terms conditions. 5. The applicant has further submitted that, in pursuance of the RFP and the agreement, corporate debtor issued various work orders from time to time, the operational creditor executed work and raised invoices from time to time. Thus the operational creditor raised 33 invoices aggregating to ₹ 2,42,60,362/- in relation to work done pursuant to work orders issued under RFP after completion of the work. That, despite completion of work awarded, the corporate debtor unjustifiably withheld the payment due and payable under 33 invoices. That, being aggrieved, inter alia, by the non-payment of dues by the corporate debtor, the operational creditor invoked arbitration on 20.10.2014 and upon constitution of Arbitral Tribunal, the operational creditor filed its statement of claim on 25th March, 2017, seeking recovery of money due. 6. The applicant has further submitted that, during pendency of the said arbitral proceedings itself, the corporate debtor, acknowledging/admitting its liability towards the invoices aggregating to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38A has been inserted in the principal Code which reads as under: - 238A Limitation.- The provision of the Limitation Act, 1963 (36 of 1963) shall, as far as maybe, apply to the proceedings or appeals before the Adjudicating Authority, the National Company Law Tribunal, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal, as the case maybe . 11. That, the issue as to whether the Limitation Act, 1963, will apply to applications that are made under Section 7 and/or Section 9 of the Code on and from its commencement on 01.12.2016 till 06.06.2018, came to be recently considered by the Apex Court in Civil Appeal No. 23988/2017 between B.K. Educational Services v. Parag Gupta Associates [2018] 98 taxmann.com 213/150 SCL 293. That, the Apex Court vide its judgement dated 11.10.2018 has held that provisions contained Section 238A are procedural in nature, therefore, gave it retrospective effect from the date of commencement of IB Code i.e. 01.12.2016. That the Apex Court has unequivocally held that provisions contained in Limitation Act are applicable to applications filed under Sections 7 and 9 of the 2016 Code from the inception of the Code, Article 137 of the Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant provisions of Limitation Act are as under: Article 137 of the Limitation Act, 1963 Art- 137. Any other application for which no period of limitation is provided elsewhere in this division Three years When the right to apply accrues and further as per Schedule given below, the time prescribed is 3 years. The Schedule: PERIODS OF LIMITATION [See sections 2(j) and 3] FIRST DIVISION - SUITS PART II - SUITS RELATING TO CONTRACTS Description of Suit Period of Limitation Time from which period begins to run For the price of goods sold and delivered where no fixed period of credit is agreed upon. Three years The date of the delivery of the goods For the price of goods sold and delivered to be paid for after the expiry of a fixed period of credit. Three years When the period of credit expires. 15. For the sake of brevity, Section 18 of the Limitation Act, 1963 is reproduced below- ...Section 18. Effect of ack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 430: (1995) 212 ITR 404] has held that proviso (a) to Section 240 is declaratory and, therefore, proviso (b) should also be held to be declaratory. In our view that is not the correct position in law. Where the proviso consists of two parts, one part maybe declaratory but the other part may not be so. Therefore, merely because one part of the proviso has been held to be declaratory it does not follow that the second part of the proviso is also declaratory. However, the view that we have taken supports of the stand of the Revenue that proviso (b) to Section 240 is also declaratory. We have held that even under the unamended Section 240 of the Act, the assessee was only entitled to the refund of tax paid in excess of the tax chargeable on the total income returned by the assessee. We have held so without taking the aid of the amended provision. It, therefore, follows that proviso (b) to Section 240 is also declaratory. It seeks to clarify the law so as to remove doubts leading to the courts giving conflicting decisions, and in several cases directing the Revenue to refund the entire amount of income tax paid by the assessee where the Revenue was not in a position to frame a fresh a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language 'shall be deemed always to have meant' is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the pre-amended provision was clear and unambiguous. An amending Act maybe purely clarificatory to clear a meaning of a provision of the principal act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law which the Constitution came into force, the amending Act also will be part of the existing law.' 17. Thus, in view of the judgment of the Hon'ble Supreme Court, delivered on 14.08.2018, a clarificatory amendment has retrospective effect. 18. That apart, it is also a matter on record that there was pre-existing dispute on account of cancellation of work order by the respondent. That, letter dated 26.06.2014, addressed to the operational creditor by the corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
