TMI Blog2020 (10) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... tification number GSR (E) dated 29.06.2017 ibid (1.02.2017 - 21.06.2017): 140 days (c). Time spent in proceedings before this Adjudicating Authority (Date on which Form 5 was filed 21.06.2017 to Date on which Abatement order was passed 03.10.2018): 469 days. Thus, after exclusion of time of 1,388 days (time spent in proceedings before the Hon'ble Bombay High Court and before this Adjudicating Authority), a period of 228 days prevails before limitation period of 3 years come to an end as per the provisions of Art. 137 of the Limitations Act - the petition filed by the Operational Creditor is within limitation. Principle of res judicata - HELD THAT:- It is observed that the order dated 03.10.2018 by the Adjudicating Authority, by which the previous proceeding abated, grants the Operational Creditor liberty to initiate a fresh proceeding as per the provisions of IBC. Therefore, that order which noted the abatement in terms of the notification number GSR (E) dated 29.06.2017 ibid, did not decide on the merits of the case. Therefore, the principles of res judicata are not satisfied and hence, this limb of the arguments advanced on the part of the Corporate Debtor deserves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hu Industrial Estate, Old Nagardas Road, Mogra Village, Andheri East, Mumbai-400059 within the State of Maharashtra. Therefore, this Bench has jurisdiction to deal with the present petition. 3. The present petition was filed on 12.04.2019 before this Adjudicating Authority on the ground that the Corporate Debtor failed to make payment of a sum of ₹ 16,39,008.00 (Rupees sixteen lakh thirty-nine thousand eight only) as principal amount and ₹ 24,49,424.96 (Rupees twenty-four lakh forty-nine thousand four hundred twenty-four and paise ninety-six only) as interest at the rate of 24% p.a. (at p.9 of the Petition) against 20 invoices raised between the period 04.12.2012 to 09.01.2013. The date of default is taken to be 07.02.2013, since in terms of the conditions mentioned in the invoice, interest would be charged if payment is not made within 30 days. 4. The case of the Operational Creditor is as follows: - (a) The Corporate Debtor by a letter dated 27.08.2012 requested the Operational Creditor for their quote on cement as they were in the process of setting up a plant at Maljipada and required a regular supply of Cement. (at para I, p. 6 of the Petition). Copy of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36 10 NE2520120100103713 20.12.2012 80,367.00 37 11 NE2520120100104675 22.12.2012 1,05.198.00 38 12 NE2520120100105022 24.12.2012 76,896.00 39 13 NE2520120100105801 25.12.2012 83,090.00 40 14 NE2520120100106231 26.12.2012 82,343.00 41 15 NE2520120100106740 27.12.2012 78,071.00 42 16 NE2520120100108098 30.12.2012 80,581.00 43 17 NE2520120100108439 31.12.2012 77,857.00 44 18 NE2520120100108948 01.01.2013 76,789.00 45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... livered on 30.10.2018. No reply was received within the prescribed period of 10 days by the Operational Creditor to the said Notice. (at para X, pp. 10-11 of the Petition). A copy of the demand notice is placed as 'Exhibit Z' at p.57-69. (m) Thereafter, the Corporate Debtor through their Advocates addressed a reply dated 11.02.2019 to the Demand Notice. (at para XIV, p. 11 of the Petition). A copy of the reply is placed as 'Exhibit AA' at p.102-104. 5. Mr. Vikramjeet Garewal a/w Mr. Sriraj Menon i/b M/S. MJ Juris, Advocates, appeared on behalf of the Corporate Debtor. 6. In its reply dated 11.09.2019, the Corporate Debtor has set up the following defence: a) The present Petition is barred by the law of limitation. The cause of action arose on 03.10.2013, the Operational Creditor had 1095 days within which Proceedings were to be filed. The winding up Petition was filed on 15.09.2015 i.e. after a period of 950 days as mentioned at para b, p.120 of the reply. Winding up petition are not proceedings in the nature of recovery proceedings for seeking enforcement of a debt. Therefore, the same will not arrest limitation nor can any exclusion of this time be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 8. The objections of the Learned Counsel for the Corporate Debtor be classified as follows: - (a) The petition is hit by limitation; (b) The petition is barred by res judicata; (c) There is a pre-existing dispute between the parties; (d) The interest charged at 24% per annum is arbitrary, excessive and not in accordance with the terms of arrangement between the parties. On the question of limitation: 9. The date of default is taken to be 07.02.2013, since in terms of the conditions mentioned in the invoice, interest would be charged if payment is not made within 30 days. 10. This claim pertains to transactions in the financial year 2012-2013, therefore, the question of limitation must be considered. 11. The Hon'ble Supreme Court in the matter of Consolidated Engg. Enterprises and Ors. Vs. Principal Secy. Irrigation Deptt. And Ors. (2008) 7 SCC 169 has clearly laid down in para 12 as follows: 12. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said Section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to file a fresh petition 03.10.2018 Date of filing of Fresh form 5 i.e. C.P. 1522/2019 12.04.2019 Time Elapsed (B) 191 days Total days calculated (A+B) 867 days Limitation period allowed as per Article 137 of the Limitation Act, 1963 1095 days 14. Time which needs to be excluded from calculation of Limitation period in accordance with section 14 of the Limitation Act, 1963 Time spent in proceedings before the Hon'ble Bombay High Court (Date on which Winding up petition was filed, i.e., 15.12.2014 to Date on which Company Petition was transferred to this adjudicating authority, i.e., 1.04.2017): 779 days Time spent between the transfer of file and the date on which Form 5 was filed with this authority, in terms of the notification number GSR (E) dated 29.06.2017 ibid (1.02.2017 - 21.06.2017): 140 days Time spent in proceedings before this Adjudicating Authority (Date on which Form 5 was filed 21.06.2017 to Date on which Abatement order was passed 03.10.2018): 46 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On arbitrary and excessive interest at 24% per annum: 22. Claim about excessive interest cannot be countenanced at this stage long after the invoices were received and acknowledged by the Corporate Debtor. 23. Therefore, the Petition made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is more than minimum amount of one lakh rupees stipulated under section 4(1) of the IBC. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor. 24. The Operational Creditor has not proposed name of Interim Resolution Professional (IRP) in the matter. 25. It is, accordingly, hereby ordered as follows: - (a) The petition bearing CP(IB) 1522/MB-IV/2019 filed by Ambuja Cement Limited [CIN: L26942GJ1981PLC004717], the Operational Creditor, under section 9 of the IBC read with rule 4(1) of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board of India (IBBI). The IRP shall carry out his functions as contemplated by sections 15, 17, 18, 19, 20 and 21 of the IBC. (g) During the CIRP Period, the management of the Corporate Debtor shall vest with the IRP or, as the case may be, the RP in terms of section 17 of the IBC. The officers and managers of the Corporate Debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRP within a period of one week from the date of receipt of this Order, in default of which coercive steps will follow. (h) The Operational Creditor shall deposit a sum of ₹ 3,00,000/-(Rupees three lakh only) with the IRP to meet the expenses arising out of issuing public notice and inviting claims. These expenses are subject to approval by the Committee of Creditors (CoC). (i) The IRP/RP shall submit periodical reports to this Adjudicating Authority indicating the progress of the CIRP. (j) The Registry is directed to communicate this Order to the Operational Creditor and the Corporate Debtor by Speed Post and email immediately, and in any case, not later than two days from the date of this Order. (k) A copy of this Order be sent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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