TMI Blog2020 (7) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... ond three years from the date of last E-mail correspondence with the Corporate Debtor. Thus, the application is barred by limitation. No balance sheet of the Corporate Debtor is filed by the Operational Creditor. Burden lies on the Operational Creditor to prove the debt alleged is appearing in the Books of Account of the Corporate Debtor. No such material is placed for the Tribunal to come to conclusion that the alleged debt is appearing in the Books of Account of the Corporate Debtor. In absence of any such evidence, conclusion cannot be arrived at basing on the material available before the Tribunal. It is very clear that the application is barred by limitation under Article 137 of the Limitation Act. Even otherwise, there was no reply to the Demand Notice by the Corporate Debtor. Had it been true that pending works were yet to be attended to by the Operational Creditor, then the Corporate Debtor would have given appropriate reply to the Demand Notice issued under section 8 of the I B Code. Surprisingly, there was no reply alleging that pending work is yet to be completed. Therefore, it cannot be said that there was any pre-existing dispute and work was incomplete. Even tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Payment made by Corporate Debtor on 1. 1st Advance - 10% of the Order Value 19-12-2010 20-12-2010 2. 2nd Advance - 15% of the Order Value 2-3-2011 17-5-2011 3. 3rd Advance - 15% of the Order Value 22-7-2011 16-8-2011 4. Remaining 60% of the basic value alongwith taxes duties to be paid against despatch documents for the supplies on pro-rata basis iii. It is averred that subsequent to the receipt of advances, Operational Creditor started the supplies from 14-9-2011 and received adhoc payments against the dispatches till 16-6-2012 and later on Corporate Debtor failed to make further payments but Operational Creditor continuously made supplies and completed the supply and erection by 29-7-2012. The details of the unpaid invoices and the interest amount due as on 29-10-2018 are described hereunder: Date Invoice No. Amount due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was 20-7-2012 and the default alleged to have taken place on 19-8-2012. It is also averred that the claim now being made by the Operational Creditor clearly arose in the year 2012 and therefore the claim is clearly beyond limitation and is hopelessly time barred. iii. It is averred that various mails on which the Operational Creditor is relying on cannot be claimed to have extended the period of limitation as these mails were sent by the Operational Creditor and not by the Corporate Debtor. Since these mails relate to for the period from 2011 to 2015 which would not help the case of Operational Creditor as even the extended period of limitation would have expired in February, 2018. As such, demand notice issued under section 8 of IBC is clearly beyond the period of limitation. iv. It is also averred that vide letter dated 3-6-2014, the Corporate Debtor requested the Operational Creditor to visit the site and complete the pending works and the balance amount payable to the Operational Creditor shall be paid only after commissioning of the Plant which clearly proves that the Operational Creditor has failed to complete the works it had taken up under the aforesaid contract. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the pending works and commission the plant. 4. Rejoinder filed by Operational Creditor and the averments therein, in brief are as follows: i. It is averred that the Operational Creditor has produced all the proofs and evidence to support the claims but the Corporate Debtor miserably failed to produce any cogent evidence to prove that it is not liable to make the payment to the Operational Creditor. Hence, the allegations that the claims are unwarranted and unjustified are false. ii. It is averred that the Corporate Debtor in their letter dated 3-6-2014 mentioned that the balance amount will be credited to the account of the Operational Creditor after commissioning of the Plant and also mentioned as follows: till date the project is not yet commissioned due to power evacuation problem and shortage of funds, we are really appreciating to your management for a great support to MSR either supply and Erection. Please see our credentials and Track records of the payment. Unfortunately, our company was in deep trouble to get the ROW of Transmission tower and mobilizing the funds, we will overcome and complete the project . It is seen from the above statement that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total amount viz. basic value and taxes are shown as follows: (in Rupees) Particulars Supply Erection Total Basic Value 3,44,00,000 31,00,000 3,75,00,000 Excise duty 25,71,775 25,71,775 Cess 77,154 77,154 CST 6,06,530 6,06,530 VAT 23,780 23,780 Service Tax -- 3,83,159 3,83,159 TOTAL 3,76,79,341 4,11,62,500 Amount paid by the Corporate Debtor (3,76,60,000) Balance Amount payable by the Corporate Debtor 35,02,500 It is averred that the above table shows that the Corporate Debtor is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as such the claim is still due to the Operational Creditor and the claim therefore, is not barred by limitation. 7. The learned counsel contended that the Corporate Debtor is contending that the claim is barred by limitation and that it had paid over and above the contract price and as such no amount is due to the operational creditor. The learned counsel contended that the Corporate Debtor tried to project as if the Operational Creditor abandoned the remaining work and left the site. The learned counsel contended that there is no truth in the said contention of the Corporate Debtor. On the other hand the Operational Creditor has completed the contract work and it is the Corporate Debtor, who had committed default in not paying the remaining balance amount. The learned counsel contended that the Operational Creditor is able to establish the debt due by the Corporate Debtor and default and as such the petition is liable to be admitted. 8. On the other hand learned counsel for the Corporate Debtor would contend that the contract was given to the Operational Creditor for supply and erection of 1 No. Air Cooled Condenser. Learned counsel contended that the Operational Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation starts from the date of last invoice. Application ought to have been filed within three years from the date of last invoice or within three years from the date of acknowledgement, if any. In the present case the claim, if any, is barred by limitation. The invoices were raised in 2012. Application ought to have been filed within three years from the date of last Invoice, which was dated 20-7-2012. Even otherwise, application ought to have been filed within three years from the date of last payment which was stated to be made on 16-6-2012. Even according to the Operational Creditor, the default had occurred on 19-8-2012. Thus, the application is filed three years beyond the date of last Invoice as well as from the date of last payment. There was lot of E-mail correspondence with the Corporate Debtor. Of course, the Operational Creditor filed E-mail correspondence done by it with the Corporate Debtor at pages 46-66 of the Paper Booklet. Such E-mail correspondence is one-sided, viz. it emanates from the Operational Creditor without any acknowledgement in the form of reply from the Corporate Debtor. To constitute an acknowledgement, there must be E-mail reply from the Corporate D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Books of Account of the company. In any event, it is written off, then the Corporate Debtor ought to have shown it as income in the relevant year in which this debt was written off and should have paid income tax. There is no material placed by the Corporate Debtor that the amount was written off. Therefore, it can be presumed that the debt stands appearing in the account of the Corporate Debtor and as such it saves limitation. There is no material placed by the Operational Creditor that the Corporate Debtor was showing any amount due to the Corporate Debtor. One of the contentions raised by the Corporate Debtor is that it had paid in excess of the contract price. On the other hand the contention of the learned counsel for the Operational Creditor is that the Corporate Debtor is yet to pay taxes as per the contract, which is not paid. No balance sheet of the Corporate Debtor is filed by the Operational Creditor. Burden lies on the Operational Creditor to prove the debt alleged is appearing in the Books of Account of the Corporate Debtor. No such material is placed for the Tribunal to come to conclusion that the alleged debt is appearing in the Books of Account of the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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