TMI Blog2020 (10) TMI 1294X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 137 of the Limitation Act, the petitioner was required to file an application within 3 years from the date, when the right to apply accrues and since due date of payment was of 23.05.2014, therefore, the petitioner was required to file the application within three years from the date of first default that is from 23.05.2014 but the present application has been filed on behalf of the petitioner on 30.06.2020, therefore, it is much after the period of three years. The documents are of the dated 18.01.2016, 07.07.2016 and 02.02.2017 and last one upon which the petitioner has placed reliance is of dated 15.12.2017 after going through these documents we noticed that, the document dated 15.12.2017 is a credit notice memo issued by the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Insolvency Resolution Process of the Respondent/Corporate Debtor on grounds of its inability to liquidate its operational debt. 2. The facts mentioned in the application in brief are as follows: i. The Operational Creditor is a corporation registered and organised under the laws of State of Delaware, USA and is engaged in the business of manufacturing of Pharmaceutical products, particularly plasma products such as Rhogam, an Anti-D immunoglobulin. ii. The Corporate Debtor had represented to the Operational Creditor/Applicant that it had the necessary approvals and licences from the concerned authorities in addition to the necessary expertise, facilities and organisation for the distribution and sale of pharmaceutical products. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51/-. vii. S mutually agreed between the parties, the Operational Creditor issued a credit note dated 15.12.2017, amounting to USD 3,60,000/- in favour of the Corporate Debtor towards the potential losses incurred qua the management of the Rhogam business in India and for the compensation for loss incurred on account of the short shelf life products supplied to Directorate of Health Services, Maharashtra (DHS). This operational credit note was issued by the operational creditor in good faith, as an offset, as no loss has in fact been incurred by the Corporate Debtor, and further no claim has been filed by DHS against the corporate Debtor before the arbitrator in the arbitration proceedings bearing no. '21 of 2017' arising out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Debtor disputed the admitted and acknowledged dues payable to the Operational Creditor basis the dispute pending between DHS and the Corporate Debtor with regard to the supply of short shelf life products. xii. Thus, in light of the aforesaid factual position, the Corporate Debtor has committed default as defined under Section 3(12) of the I B code and the aforesaid outstanding amount absolutely qualifies as an Operational Debt within the meaning of Section 3(11) read with Section 5(21 ) of the I B Code. Hence, the Corporate Debtor is liable to repay the said Operational debt as per the relevant provisions of I B Code. xiii. Hence, the applicant has filed the present application under the Code for initiation of corporate insolvency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has enclosed the Distribution Agreement which was executed on 21.03.2014 and we further noticed that the first invoice was raised by the petitioner on 19.12.2013 and the due date of payment was 18.04.2014 and the last invoice was raised by the petitioner on 23.01.2014 and the due date of payment was 23.05.2014 and on the basis of invoices, the date of default is the date of payment, it means since the amount was not paid on 23.05.2014, therefore, on that day the default had occurred. 8. In view of the Article 137 of the Limitation Act, the petitioner was required to file an application within 3 years from the date, when the right to apply accrues and since due date of payment was of 23.05.2014, therefore, the petitioner was required to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng invoices and the two invoices are referred which are of dated 26/12/2013 and if we accept that this letter will be treated as acknowledgement of debt under Section 18 of the Limitation Act then the limitation shall run from the date of acknowledgement i.e. from 07.07.2016. 10. At this juncture, we would also like to refer the documents which is at page 66 of the application, this is not written by the respondent rather it is written by the petitioner to the respondent, therefore, in our considered view, in view of Section 18 of the Limitation Act it cannot be treated as acknowledgement of debt. 11. Even if letter is also treated as acknowledgement of debt then the limitation shall run from the date i.e. 02.02.2017 whereas the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X
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