TMI Blog2019 (11) TMI 1490X X X X Extracts X X X X X X X X Extracts X X X X ..... it to be For and on behalf of the Company , but instead uses the words Signed, Sealed and Delivered by the with in named the Company by the hands of Mr. Shantilal Ratanchand Lunkad, the Authorised Signatory - In the absence of the seal of the company or details of authorisation, the MoU cannot be said to be executed with proper authority, not a legally valid document and not binding on the Company (Corporate Debtor). Issue No. 1 is, therefore, decided accordingly. Whether the amount claimed under the MoU can be held to satisfy the definition of Operational Debt given in section 2(21) of the IBC? - HELD THAT:- In view of the decision that the MoU is not validly executed and does not bind the Corporate Debtor, this issue has become ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mited ( the Corporate Debtor ). 2. The Corporate Debtor is a private company limited by shares and incorporated on 13.04.2000 under the Companies Act, 1956, with the Registrar of Companies (RoC), Maharashtra, Mumbai. Its CIN is U51900MH2000PTC125864. Its registered office is at No. 3105, Grandeur Tower, Near Magathane Telephone Exchange, Borivali (East), Mumbai 400066. Therefore, this Bench has jurisdiction to deal with this petition. 3. The present petition was filed on 30.04.2019 before this Adjudicating Authority on the ground that the Corporate Debtor failed to make payment of a sum of ₹ 7,50,77,317.00 (Rupees seven crore fifty lakh seventy-seven thousand three hundred and seventeen only) as principal, claimed under the term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 06.04.2019 to the Corporate Debtor (Exhibit 'A', pp. 17-63) in terms of section 8 of the IBC. The Corporate Debtor has sent a reply dated 16.03.2019 wherein they have inter alia raised the objection that the alleged of ₹ 7,50,77,217/- is not an operational debt or any other kind of debt. They have also contended that the purported MoU dated 21.08.2013 is invalid, non-est and void ab initio, since they have not authorised anyone to enter into the purported MoU. The reply has been annexed at Exhibit 'B' at pp. 64-66 of the Petition. 8. Mr. Tejas Deshpande, Advocate, appeared on behalf of the Corporate Debtor and made his submissions. 9. In its reply dated 29.08.2019, the Corporate Debtor has set up the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Debtor. Clause 3 of the MoU at p.30 states that the said sum will carry interest @ bank deposit rate with effect from 01.8.2013 till the sum is actually paid. Issues: 12. The issues that arise for determination are the following: - (a) Whether the MoU is a validly executed contract binding the Corporate Debtor? (b) If so, whether the amount claimed under the MoU can be held to satisfy the definition of Operational Debt given in section 2(21) of the IBC? (c) In the event that the definition of Operational Debt is satisfied, whether the claim itself is hit by limitation? Issue No. 1 - Whether the MoU binds the Corporate Debtor 13. The MoU, even if raised to the level of a contract, does not carry the sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered. 17. The Hon'ble Supreme Court, in the matter of B.K. Educational Services Private Limited vs. Parag Gupta Associates [2018 (14) SCALE 482], decided on 11.10.2018, has clearly laid down in para 27 as follows: - 27. It is thus clear that since the Limitation Act is applicable to applications filed under sections 7 and 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, save and except in those cases where, in the facts of the case, section 5 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of limitation within the meaning of section 18 of the Limitation Act, 1963, as stated in para 11 supra. 22. For all these reasons, the petition fails the twin tests of merit and limitation, and therefore, the same is rejected. 23. We make it clear that any observations made in this order should not be construed as expressing opinion on merits in respect of any right that may be available to the petitioner under any other law. Accordingly, the right of the petitioner before any other judicial forum shall not be prejudiced on grounds only of dismissal of the present petition by this Adjudicating Authority. 24. Let a copy of this order be communicated to the parties in terms of the provisions of section 9(5)(ii) of the IBC. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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