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TMI Blog2021 (11) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that it was 'barred by Limitation'. 2. By the Impugned Order, the Learned Adjudicating Authority has observed as follows:- "From the perusal of the Bank Statements, this is clear that Bank Statement for the period from 05.05.2017 to 29.05.2017 and 25.02.2019 to 16.10.2019 only have been filed in the support of the claim. The invoices are from the period of 19.05.2015 to 09.1.2.2016 but no Bank Statements pertaining to this period have been enclosed along with the petition. Ld. Counsel for the Petitioner state that Rs. 2,00,000/-(Two Lakh) received from the Corporate Debtor on 17.05.2017 was already adjusted towards dues and therefore only the balance amount is claimed in the application. Ld. Counsel for the respondent brings to the notice of this Adjudicating Authority that there is no basis for the claiming of interest by the petitioner. The petitioner in the application has claimed 18 % as the interest per annum though he is not entitled to any interest. The petitioner has failed to satisfy this Adjudicating Authority on the total amount due and payable. It is clearly a time barred debt. Since, the period of the invoices is from the date 19.05.2015 to 09.12.2016 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Debtor', the outstanding payment was not cleared. On 10.05.2018, the 'Corporate Debtor' issued an email acknowledging the outstanding debt of Rs. 33,27,708/- together with the statement of account. The Appellant issued a Demand Notice under Section 8 of the Code on 25.02.2019 seeking payment of the principal amount together with interest at 18% per annum, for which the 'Corporate Debtor' did not choose to issue any Reply or make any payment towards the outstanding debt. It is contended by the Counsel that pursuant to the part payment made by the 'Corporate Debtor' on 17.05.2017, there is a default of an outstanding debt of Rs. 33,77,708/-. By way of email dated 10.05.2018, the 'Corporate Debtor' issued a Statement of Account admitting and acknowledging this outstanding debt. Hence, the period of Limitation calculated from 10.05.2018 ends on 10.05.2021 and therefore the Section 9 Application is within the Limitation period. Additionally, the Limitation period should extend on account of part payment made by the 'Corporate Debtor' on 17.05.2017 which is evident from the Ledger Statement maintained by the Appellant Qua the 'Corporate Debtor'. The Learned Counsel placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under any previous company law; (b) any other company governed by any special Act for the time being in force, except in so far as the said provisions are inconsistent with the provisions of such special Act; (c) any Limited Liability Partnership incorporated under the Limited Liability Partnership Act, 2008 (6 of 2009); (d) such other body incorporated under any law for the time being in force, as the Central Government may, by notification, specify in this behalf; (e) personal guarantors to corporate debtors; (f) partnership firms and proprietorship firms; and (g) individuals, other than persons referred to in clause (e)" (Emphasis Supplied) It is evident from Section 2(f) that proprietorship firms also can initiate CIRP Proceedings. 6. It is not in dispute that the Appellant supplied mono cartons and labels to the 'Corporate Debtor' during the period 2015 to 2016 and the last payment of Rs. 2 Lakhs/- was made by the 'Corporate Debtor' to the Appellant on 23.05.2017. It is the case of the Appellant that there is an outstanding principal amount of Rs. 33,27,708/- to be paid by the 'Corporate Debtor' towards the invoices raised for the supply of mono cartons and la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received. Explanation.-For the purposes of this section,- (a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set off, or is addressed to a person other than a person entitled to the property or right, (b) the word "signed" means signed either personally or by an agent duly authorised in this behalf, and (c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right." "19. Effect of payment on account of debt or of interest on legacy.- Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation.-For the purposes of this section, a "demand notice" means a notice served by an operational creditor to the corporate debtor demanding [payment] of the operational debt in respect of which the default has occurred. 13. In their Reply Affidavit filed before this Tribunal there is no whisper regarding the Section 8 Notice nor were any grounds raised for not replying to the same. Even in their Reply to the Section 9 Application filed before the Adjudicating Authority, the Respondent/'Corporate Debtor' does not deny receipt of the Section 8 Notice nor do they give any reasons for not replying to the same though in para 7 of the Reply the 'Corporate Debtor stated that 'the notice dated 25th February, 2019, issued under I.B. Code, 2016 is not in accordance with statutory provisions as mentioned in Section 8 of the Code hence the application is liable to be rejected' which establishes that the 'Corporate Debtor' did receive the Notice under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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