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TMI Blog2021 (2) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... red under the Companies Act, 1956 having its Registered Office Plot No: 1217/A, Veda Ark, Road No.36, Upstairs Smoky Pitara, Jubilee Hills, Hyderabad, Telangana. 3. Brief facts of the instant case, as stated by the Applicant are as under:- a. That the Petitioner/OC is engaged in the Manufacturing and supply of mild steel pressed door frames and shutters and allied products and that the Respondent/Corporate Debtor is into the business of building, transportation, irrigation, water supply, tunnels and industrial structural's of complete or parts thereof in EPC engineering construction projects. b. That the OC has received the purchase orders from M/s RVR Projects Private Limited i.e., the CD herein for supplying of mild steel pressed door frames with thickness of 1.25 mm including hinges jamb, lock jamb, bead rolling 6 for the total worth of Rs. 19,29,417/- (inclusive of Taxes) vide Work order RVR/NTPC(GPL)/WO/2014/3066 dated 20.09.2014. c. That initially the work order was issued worth of Rs. 19,29,417/- and subsequently the work was enhanced to Rs. 37,00,361/- on the instruction of Corporate Debtor orally and the same is not in dispute. That the materials were supplied by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor. i. That there is no notice of disputes from the Corporate Debtor after receiving the material and that the material is being used in the projects. That the demand notice was issued to Corporate Debtor on 23.08.2019 and the same was delivered to the Corporate Debtor on 30.08.2019. That the Corporate Debtor has called the Operational Creditor for settlement on 04.10.2019 and 24.10.2019 at corporate office of the Corporate Debtor. On 04.10.2019 the Operational Creditor met the director of the Company Mr. R. Satyanarayana, during discussions he agreed to settle the issue on 24.10.2019. j. That on 24.10.2019, Mr. Mohan Rao represented the corporate debtor and committed to pay the amount of Rs. 6,80,976 in addition to 'C' forms payment of Rs. 1,56,510/-. That after 15 minutes, surprisingly Mr. Mohan Rao said that he will only pay the amount of 'C' forms i.e., Rs. 1,56,510/-, which was not accepted by the operational creditor. Calculation sheet done and approved by the Mr. Mohan Rao is attached. That after agreeing in principle and not accepting again, shows the mala-fide intention of Corporate Debtor to evade the payment. k. That after unfruitful negotiations, the Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 505.00 13.11.2014 3 361411046856355 RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS & ENGINEERING WORKS 4,45,561.00 08.11.2014 4 SAMLES WITHOUT WAYBILL BUT INVOICE RAISED REPORTED IN CST SALES PAID THE TAXES RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS & ENGINEERING WORKS 20,490.00 26.11.2014 5 361411265697843 RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS & ENGINEERING WORKS 1,84,625.00 26.11.2014 6 361411268946199 RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS & ENGINEERING WORKS 1,48,031.00 05.12.2014 7 361412051476710 RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS & ENGINEERING WORKS 58,357.00 09.12.2014 8 361412096251687 RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS & ENGINEERING WORKS 5,51,852.00 15.12.2014 9 ADDED TO ABOVE WAY BILL SEND THIS MATERIAL RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS & ENGINEERING WORKS 55,725.00 29.12.2014 10 MATERIAL DISPATCHED WITHOUT WAYBILL BUT INVOICE RAISED RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS & ENGINEERING WORKS 62,907.00 29.12.2014 11 MATERIAL DISPATCHED WITHOUT WAYBILL BUT INVOICE RAISED RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS & ENGINEERING WORKS 62,907.00 08.01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the same, the Corporate Debtor herein made alternate arrangements with a 3 party to complete the balance works and also further requested them to supervise and complete the balance works. d. That in view of the said breach committed by the Operational Creditor herein by not attending to the works, the Corporate Debtor hired a 3rd party contractor to complete the said works and in view of the same the Corporate Debtor incurred higher costs. e. That for the works completed by the applicant herein, they were paid and that there are no dues whatsoever pending. f. That the Corporate Debtor has addressed an email to the Operational Creditor herein dated 28.04.2015, to attend the works and yet the Operational Creditor have neither completed the works nor have responded to the said email communication. Assuming the said date i.e. 28.04.2015 as the last date of communication or the day on which the alleged due amount became payable, the Petitioner Operational Creditor herein has not reported the same till 05.01.2019, by then the same is barred by Law of Limitation. g. That after the last email communication on 28.04.2015, the Operational Creditor for the 1st time again c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is in existence prior to the date of issuance of the demand notice. The Corporate Debtor has clearly elaborated upon how there was a pre-existing dispute and that no amount was payable by the corporate debtor herein. o. The Corporate Debtor has placed reliance on the following judgements : - i. The Hon'ble Supreme Court of India in Mobilox Innovations Pvt. Ltd., v. Kirusa Software Pvt. Ltd. (2017 SCC Online SC 1154) ii. The Hon'ble NCLAT in the case of Sandeep Reddy v. Jaycon infrastructure Ltd., [2018] 144 CLA 86 (NCLAT) Reiterating above, Ld. Counsel for the Corporate Debtor prayed to dismiss the instant Application. 5. The Learned Counsel for the Operational Creditor filed its Rejoinder reiterating the averments made in the Application, denying the allegations made in the counter and further prayed to allow the instant Application. 6. The Operational Creditor has also filed a memo dated 27.02.2020 enclosing a copy of case law, relying upon the Judgement of Hon'ble Supreme Court in Mrs. Margaret Lalita Samuel Vs. The Indo Commercial Bank Limited wherein it is held as under:- "In the case of such continuing guarantee, so long as the account is a live account in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Application is also 09.02.2015, which is much beyond the period of Limitation of three years. Clarifying the applicability of Article 137 of the Limitation Act to the proceedings under the IBC 2016, Hon'ble Supreme Court in the case of B.K. Educational Services Private Limited y. Parag Gupta and Associates held as under : "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 the Limitation Act may be applied to condone the delay in filing such application." Further Hon'ble Supreme Court in Gaurav Hargovindbhai Dave v. Asset Reconstruction Company (India) Ltd. have categorically held that the proceedings under section 7 of the IBC are "an application" and not "suits"; thus they would fall within the residuary article 137 of the L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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