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TMI Blog2021 (11) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... initiate Corporate Insolvency Resolution Process ("CIRP") under Section 9 of the Insolvency and Bankruptcy Code 2016 ("the Code') against the Respondent, Cloud 9 Projects Pvt. Ltd. for the alleged default on the part of the Respondent in clearing the debt of Rs. 2,56,134/- (Rupees Two Lakh Fifty-Six Thousand One Hundred Thirty-Four Only) Principal Amount being Rs. 1,54,000/- as alleged by the applicant, towards the Services Provided by the Applicant. The details of transactions leading to the filing of this application as averred by the Applicant are as follows: i. The applicant stated that the Respondent through their Directors approached the Applicant for exclusive designing of the plan for Heating and Ventilation and Venting Air C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e stated that the amount payable as per alleged reconciliation statement is Rs. 77,000/- which does not qualify as minimum default amount to initiate CIR Process along with that stated that the applicant provided unsatisfactory, negligent and inferior services. 2. Consequent to the notice issued by the Tribunal, the Respondent filed its reply affidavit stating that: a. The application has been filed beyond the period of Three years when the purported cause of action arose. The Respondent further submitted that if the debt as claimed by the petitioner, wholly or partly is barred by Limitation then the same cannot be the basis for invoking the provisions of I&B Code, 2016. b. The Respondent submitted that as the amount claimed cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the judgement of Hon'ble Supreme Court in matter of B.K. Educational Services v. Parag Gupta and Associates (2019) 11 SCC 633, wherein the Apex court held that provisions of the limitation Act, 1963 are applicable to petitions filed by the operational creditor under section 9 of the code from the "inception of the code". It was further held that 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 petition, the petition would be barred under Article 137 of the Limitation Act, 1963. The Ld. Counsel further submitted that in the facts of the present case, from the bare perusal of the petition filed by the Operational Creditor, the alleged date of defa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, the present application has been filed on 10.10.2019 which is way beyond the period of three years hence, it can be ascertained that the present application has been filed beyond the period of three years from the date of default. 7. The Hon'ble Supreme Court in Babulal Vardharji Gurjar vs. Veer Gurjar Aluminum Industries Pvt. Ltd. & Anr. Civil Appeal no. 6347 of 2019 has held that the right to apply under the code accrues on the date when the default occurs and that the date of commencement of the code is not the trigger point for the limitation and if the default had occurred over three years prior to the date of filing of the application, the application would be time-barred. 8. From the aforesaid decisions, it is clear tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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