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TMI Blog2019 (11) TMI 1572X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 9 of the Insolvency and Bankruptcy Code, 2016 (IBC) by CVS Infrastructure P. Ltd. ("the operational creditor"), a company within the meaning of section 2(20) of the Companies Act, 2013, and represented by its director, Mr. Chandrakant Vadilal Shah, on the basis of a board resolution dated January 9, 2018 seeking to initiate corporate insolvency resolution process (CIRP) against Maari Multitrading P. Ltd. ("the corporate debtor"). A copy of the board resolution has been placed at page 35 of the petition. 2. The corporate debtor is a private company limited by shares and incorporated on April 21, 2011 under the Companies Act, 1956, with the Registrar of Companies (RoC), Maharashtra, Mumbai. Its CIN is U51109MH2011PTC216503. Its register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,500. Invoice copy is at page 29 ; (4) Invoice No. SB/28/14-15 dated September 22, 2014 for Rs. 1,18,65,000. Invoice copy is at page 30 ; (5) Invoice No. SB/29/14-15 dated September 22, 2014 for Rs. 1,18,65,000. However, the copy of the invoice at page 31 shows that the invoice amount is Rs. 1,98,45,000. (6) Invoice No. SB/30/14-15 dated September 22, 2014 for Rs. 26,46,000. Invoice copy is at page 32 ; and (7) Invoice No. SB/31/14-15 dated September 22, 2014 for Rs. 71,82,000. Invoice copy is at page 33. 5. Invoices have been placed on record as exhibit 2 at pages 27-33. The invoices do not provide for interest in case of delayed payments. Bank statements are also attached as exhibit 3 at pages 34. The total debt due and payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t (paragraph 4 at page 2 of the reply) ; (c) Thereafter, the operational creditor filed a complaint against the corporate debtor before the economic offences wing (EOW) for recovery of amount twice within the space of six months, which was rejected by the EOW on the ground that the operational creditor failed to provide correct and legible documents of transactions. In every case raised by the operational creditor against the corporate debtor, there is variation in the amount claimed (paragraph 5 at pages 2-3 of the reply) ; (d) The tax invoices and ledger can be easily forged and moreover, there is no acknowledgment of the tax invoice. Nor has the operational creditor produced any delivery challan or lorry receipt (paragraph 6 at page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, section 5 of the Limitation Act may be applied to condone the delay in filing such application." 13. In Sagar Sharma v. Phoenix ARC P. Ltd. [2019] 8 Comp Cas-OL 581 (SC) ; [2019] SCC On Line SC 1332 (September 30, 2019), the hon'ble Supreme Court reiterated its observations in B. K. Educational Services P. Ltd. v. Parag Gupta and Associates [2019] 212 Comp Cas 1 (SC) ; [2018] 14 Scale 482 and stated as follows (page 584 of 8 Comp Cas-OL) : "Article 141 of the Constitution of India mandates that our judgments are followed in letter and spirit. The date of coming into force of the IBC does not and cannot form a trigger point of limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have the effect of extending the period of limitation within the meaning of section 18 of the Limitation Act, 1963, as stated in paragraph 11 supra. 17. Furthermore, even on the merits, there is no evidence placed on record that the invoices were received by the corporate debtor. Neither have delivery challans evidencing service on goods on the corporate debtor been placed on record. 18. For the reasons stated above, the application fails and therefore, the same is rejected. 19. We make it clear that any observations made in this order should not be construed as expressing opinion on the merits. The right of the petitioner before any other judicial forum shall not be prejudiced on grounds of dismissal of the present petition by this Adju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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