TMI Blog2020 (10) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Facilitation Council. So the said order evidenced that the preexisting dispute between the OC and the CD is still pending. That being so the CD has successfully established existence of dispute before the date of issuance of demand notice. Accordingly it can be rightly concluded that the Operational Creditor has failed in establishing that the debt as claimed by the Operational Creditor is due and payable under any law and that the claim preferred by the Operational Creditor was within the period of limitation. Moreover, the Corporate Debtor here in the instant case established existence of disputes. Accordingly, this application is liable to be dismissed. Application dismissed. - C.P. (IB) No. 1249/KB/2018 - - - Dated:- 16-3-2020 - Jinan K.R., Member (J) For the Appellant : Deepak Kumar Khaitan, FCS, Shruti Singhania, PCS, For the Respondent : Manju Bhuteria and Subhendu Halder, Advocates ORDER Jinan K.R., Member (J) 1. M/s. Emdee Digitronics Private Limited, the Operational Creditor filed this application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (I B Code) read with Rule 6 of the Insolvency and Bankruptcy (Applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porate Debtor has failed to pay despite demand and accordingly this application is liable to be admitted. 4. The Respondent/Corporate Debtor entered appearance and filed reply affidavit objecting to the application contending that the application is not maintainable and it was filed by suppressing the material facts. The Operational Creditor has approached the West Bengal Micro and Small Enterprises Facilitation Council and an award was passed by the Facilitation Council which was subsequently set aside by the Judgment and Order dated 27th April, 2017 passed by the Court of the Learned Additional District Judge, 14th Court at Alipore at the instance of the Corporate Debtor. It is stated that the award was passed by the Council without considering the dispute raised by the Corporate Debtor in regard to the claim of the Operational Creditor and the order itself evidences existence of unsettled dispute before the issuance of the demand notice. 5. The Operational Creditor has not preferred an appeal as against the order of dismissal of the award and filing of this application is therefore not at all maintainable. The said proceedings is barred by principles of res judicata. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poverty line beneficiaries in the places referred to in the Work Orders. According to the Ld. Pr. CS appearing for and on behalf of the Operational Creditor, the work which has been entrusted to the Operational Creditor has been successfully carried out and out of ₹ 33,44,144/- (Rupees Thirty Three Lakh Forty Four Thousand One Hundred Forty Four Only) ₹ 18,92,748/- (Rupees Eighteen Lakh Ninety Two Thousand Seven Hundred Forty Eight Only) alone was paid by the Operational Creditor. The balance amount of ₹ 14,51,396/- is still outstanding and liable to be paid by the Corporate Debtor. According to him though the last payment was on 23.06.2009, because of the pending proceedings before the West Bengal Micro and Small Enterprises Facilitation Council and that litigation was pending up to 27th April, 2017, the period taken for the said bona fide litigation if excluded from the time period to be computed in this application filing of this application is within the period of limitation. 11. The Ld. Counsel for the Corporate Debtor strongly opposed the above said submission and submitted that Section 14 of the Limitation Act, 1963 is not at all applicable in the case i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of MSMED Act, the Operational Creditor can file complaint before the Facilitation Council and the Operational Creditor rightly approached the said forum for resolving the dispute. So can he claim exclusion of time taken before the Facilitation Council under section 14 of the Limitation Act, 1963?. My answer is in the negative. 15. In order to attract section 14(1) of the Limitation Act, 1963, the Operational Creditor has to prove that with due diligence the OC prosecuted the same subject matter before a wrong forum. Filing of a complaint before West Bengal Micro and Small Enterprises Facilitation Council by the OC before the right forum does not falls under section 14(1) of the Limitation Act. Therefore, the submission on the side of the OC that time taken before Facilitation Council is to be excluded for computing the period of limitation is unsustainable under law. 16. Under Section 14(2), the Operational Creditor has to establish that the proceedings initiated in the court without jurisdiction must be for the same relief. The relief sought for in the case in hand is for resolution of the stressed assets of the CD and not for resolving the dispute. Under the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers:- That the Misc. Case No. 262/2013 is allowed on contest cost. The Arbitral Award vide order dated 22.06.2012 passed by State Micro Small Enterprises Facilitation Council in case no hereby set aside under section 34 of the Arbitration and Conciliation Act, 1996. However, the West Bengal State Micro Small Enterprises Facilitation Council is at liberty to take up the dispute under the West Bengal State Micro, Small Medium Enterprise Development Act, 2006, if approached by either of the parties. Let the amount of ₹ 17,03,360/- which has been deposited by the petitioner before the Court of Ld. District Judge, South 24 Parganas returned to the petitioner on proper identification and verification of the order of Hon'ble High Court, Calcutta dated 16.08.2016 passed in CO. 2737/2016 with CO. 2669/2016 with CO. 1465/2016. 20. On a reading of the said order, it is clear that the Corporate Debtor has raised dispute regarding the non compliance of terms in the work orders and the Ld. Additional District Judge had been given the liberty to the Corporate Debtor to raise the dispute again if the Operational Creditor preferred a fresh claim before the Micro, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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