9911796707
TMI Blog2020 (10) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... n calculated @ 3 times of the bank rate notified by the Reserve Bank of India, which is in accordance with the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act, 2006) from 21.07.2009 up to 17.08.2016 and thereafter @ 24% p.a. which is the contractual terms as per the invoice from 18.08.2016 till 31.03.2018. 2. The Operational Creditor has submitted that an amount of Rs. 14,51,396/- (Rupees Fourteen Lakh Fifty One Thousand Three Hundred Ninety Six Only) is the unpaid principal amount due from the Corporate Debtor for the services rendered by the Operational Creditor to the Corporate Debtor from January, 2009 to September, 2009. The Operational Creditor further would submit that the total amount due was Rs. 33,44,144/- (Rupees Thirty Three Lakh Forty Four Thousand One Hundred Forty Four Only) and out of which the Corporate Debtor has paid Rs. 18,92,748/- (Rupees Eighteen Lakh Ninety Two Thousand Seven Hundred Forty Eight Only) and the balance outstanding principal amount is Rs. 14,51,396/- (Rupees Fourteen Lakh Fifty One Thousand Three Hundred Ninety Six Only) and the Operational Creditor is entitled to claim interest as per the provisions of MSMED Act, 2006 as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The Corporate Debtor worked as a 3rd party Administrator on behalf of the Insurance Companies duly constituted and regulated by law. The Operational Creditor is engaged in carrying on business of making and installing various electronic and digital appliances including electronic smart cards. The Operational Creditor on behalf of its principals engaged the Corporate Debtor to execute the job of implementation of Rastriya Sasthya Bima Yojona (In short RSBY) by issuing and delivering smart cards upon enrollment of below poverty line beneficiaries in Muzaffarpur District, Block Khurani and Kanti. In this connection a copy of the Work Order dated 29th January, 2009 has been issued and one another Work Order dated 3rd June, 2009 also has been issued to the Corporate Debtor. 7. However, the Corporate Debtor has failed in issuing completion Certificate and other particulars for enabling the Operational Creditor to disburse the amount. Moreover, the Corporate Debtor committed breach of contract as the job was not completed in terms of the contract and not accepted by the Insurance Company. Accordingly, this application is liable to be dismissed as there exists dispute and because the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. "The right to sue", therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred Under Article 137 of the Limitation Act..." 13. The date of default according to the Operational Creditor was on 21st July, 2009. By applying Article 137 of the Limitation Act, an application of this nature could have been filed within 3 years from the date of default. That means filing of this application on 29.06.2018 is hopelessly barred by limitation. 14. At this juncture the Ld. Pr.CS submits that with in the period of limitation the Operational Creditor filed a complaint before the West Bengal Micro and Small Enterprises Facilitation Council and the said proceedings were ended on 27th April 2017 and if the said period is excluded for computing the period of limitation filing of this application on 29.06.2018 is perfectly in time and therefore this application is maintainable. Counter to the above said submissions, the learned Counsel for the Corporate Debtor submits that there is no exclusion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court has observed in Para 21 reproduced here under, squarely fit to the facts in the instant case. Para 21. The aforesaid judgments correctly hold that a suit for recovery based upon a cause of action that is within limitation cannot in any manner impact the separate and independent remedy of a winding-up proceeding. In law, when time begins to run, it can only be extended in the manner provided in the Limitation Act. For example, an acknowledgment of liability under Section 18 of the Limitation Act would certainly extend the limitation period, but a suit for recovery, which is a separate and independent proceeding distinct from the remedy of winding up would, in no manner, impact the limitation within which the winding-up proceeding is to be filed, by somehow keeping the debt alive for the purpose of the winding-up proceeding." 18. Applying the proposition laid down in the said judgment, it is made clear that time begins to run in this case for filing this application was on 21st July, 2009 and nothing in this case to hold that the period of 3 years starting from the said date can be extended to 29.06.2018 as attempted to establish on the side of the Operational Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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