TMI Blog2021 (12) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent. It transpires that the Respondent had admitted his liability and ready to make payments and revised settlement offer to the tune of USD 99,786.41/- was offered by the Respondent to the Appellant - the Application under Section 9 of the IBC filed by the Appellant before the Ld. Adjudicating Authority is hereby allowed. - Company Appeal (AT) (Insolvency) No. 981 of 2020 - - - Dated:- 15-12-2021 - [Justice Anant Bijay Singh] Member (Judicial) And [Ms. Shreesha Merla] Member (Technical) For the Appellant : Mr. Nakul Dewan, Sr. Advocate with Ms. Suruchi Suri, Mr. Simran Jot Singh, Ms. Cheryl Fernandes, Mr. Vivek Shetty and Mr. Sambit Nanda, Advocates For the Respondent : Mr. Aditya Ghadge, Mr. AT Patra and Mr. Karan Khaitan, Advocates. JUDGMENT Justice Anant Bijay Singh; This Appeal has been preferred by the Appellant aggrieved and dissatisfied by the order dated 06.10.2020 passed by the Ld. Adjudicating Authority (National Company Law Tribunal), New Delhi Bench- V in CP(IB) 841 (ND)/2020 whereby and where under the Application filed by the Appellant herein (Operational Creditor) under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the disputes between the Corporate Debtor and DHS with regard to the supply of short shelf life products. viii) As per the invoices mentioned here in above, the total consideration for the sale of products received by the Corporate Debtor was ₹ 9,42,03,330/- ix) Further case is that the Operational Creditor approached the Corporate Debtor on several occasions to settle the aforesaid dues, however the same was not availed, as the Corporate debtor has neither settled the dispute nor cleared the admitted liability towards the outstanding dues payable to the Operational Creditor. x) The Operational Creditor was constrained to issue a demand notice dated 25.07.2019 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nuary 2014 for USD 604,055.40/- 4. It is further submitted that the Ld. Adjudicating Authority has also failed to appreciate that on 18th January 2016, the Respondent confirmed that the total outstanding due to the Appellant as on 31st December 2015 was USD 1,261,955.4/- (Annexure A-5 at page 66 to 67 of the Appeal Paper Book). 5. It is further submitted that on 2nd February 2017, the Respondent again confirmed that the total outstanding due to the Appellant as on 31st December 2016 was USD 901,955.40/- (Annexure A-6 at page 68 of the Appeal Paper Book). 6. It is further submitted that the reduction in the liability by USD 360,000/- was of an offset for the potential losses incurred by the Respondent on account of demands/claims raised by Directorate of Health Services (DHS) due to the alleged short shelf-life products sold to it. 7. It is further submitted that on 31 December 2017, based on an agreement between the parties, the Appellant issued a credit memo to the Respondent recording a credit of USD 360,000/- on account of possible claims of DHS. This credit memo was acknowledged by the Respondent (Annexure A-7 at page 69 of the Appeal Paper Book). 8. It is furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, the Ld. Adjudicating Authority have erred in dismissing the section 9 of the IBC Application as they have failed to consider the fact that the Respondent have acknowledged debt in form of the confirmation letter and the credit memo which clearly extended the period of limitation for another 3 years. 13. It is further submitted that the Ld. Adjudicating Authority failed to consider that the limitation period was extended by the acknowledgments made by the Respondent on 18.01.2016, 02.02.2017, 15.12.2017, 15.10.2018 and lastly on 10.11.2018. Therefore, the limitation period for filing the Application under Section 9 of the IBC was ending on 09.11.2021 and this Application was filed much before the period i.e. on 30.06.2020. 14. On the basis of these submissions the Learned Sr. Counsel for the Appellant relied on judgment in Bishal Jaiswal Vs. Asset Reconstruction Company (India) Limited and Anr. dated 25th September 2020 (2020 SCC OnLine NCLAT 681) wherein paragraphs 27, 28 and 29 are hereunder: 27. Firstly we have considered whether Section 18 of Limitation Act, 1963 is applicable to Insolvency Cases? 28. We have carefully gone through the Judgment of Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed before it. 17. It is further submitted that neither in the demand notice dated 07.08.2019 (Annexure A/9) nor in the Application under Section 9 of the IBC (Annexure A/11), the Appellant has pleaded that the date of default has got extended due to any acknowledgement. 18. It is further submitted that additional documents sought to be produced in the Appeal being electronic documents are not admissible without complying with the requirement to produce certificate under Section 65B (4) of the Evidence Act. 19. The Learned Counsel for the Respondent relied on the Judgment of the Hon ble Supreme Court in the case of Babulal Vardharji Gurjar reported in 2020 SCC Online 647, paragraphs 91 to 94 wherein Hon ble Supreme Court held that benefit of Section 18 of the Limitation Act is not available in the case of an application under Section 9 of the IBC. 20. It is further submitted that the Appellant in its Application before the Ld. Adjudicating Authority has mentioned the date of default, which is more than three years prior to 30.06.2020. Therefore, based on these submissions there is no merit in the instant Appeal, the Appeal is fit to be dismissed. FINDINGS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2017, the Respondent again vide letter dated 02.02.2017 confirmed and acknowledged the outstanding amount as on 31.12.2016 due and payable to the Appellant was USD 901,955.40/- (Annexure A/6 at page 69 of the Appeal Paper Book). The Respondent on 15.10.2018 proposed a payment of USD 85,526.11/- as a settlement for the amount due to the Appellant and on 10.11.2018, the Respondent revised its settlement offer to USD 99,786.41/- (Annexure A-12 at page 145 to 148 of the Appeal Paper Book). Taking all these emails and considering, it transpires that the Respondent had admitted his liability and ready to make payments and revised settlement offer to the tune of USD 99,786.41/- was offered by the Respondent to the Appellant. So, in view of the Bishal Jaiswal (Supra) case the acknowledgement by the Respondent is within time. We are of the considered opinion that the Ld. Adjudicating Authority eared in holding that the Appellant claim is time barred. ORDER 22. In view of the above, we are of the considered view that the order dated 06.10.2020 passed by the Ld. Adjudicating Authority (National Company Law Tribunal), New Delhi Bench- V in CP(IB) 841 (ND)/2020 is hereby set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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