TMI Blog2022 (8) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... 86,105/- has been paid and that there is no due - While it is the contention of the Petitioner that there is debt and default in excess of Rs. 68,86,105/- which has been already paid by the Corporate Debtor. The Ld. Counsel for the Petitioner was asked to explain how the petition is maintainable; in view of two important factors namely limitation and pendency of Arbitration Proceedings, which is a fall out of the series of notices and the Suit proceedings with reference to Arbitration. Time Limitation - HELD THAT:- The plea that Section 14 of the Limitation Act, 1963 will save the present case does not find merit. At the time of filing of the petition, i.e., on 27.01.2020, the Petitioner/Applicant knows about the pendency of Arbitral P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and Neeru Shara , Advs ORDER R. Sudhakar , J. ( President ) 1. This is an application filed by Mr. Jadu Nath Behura the sole proprietor of M/s. J.N. Behura & Company under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC, 2016), seeking initiation of CIR proceedings against Respondent namely M/s. Mahavir Stone Crushing Pvt. Ltd. 2. The applicant has provided various sanitation and plumbing services to the Corporate Debtor in the period 2014-2016 under a contract dated 15.07.2017 for which a work order was furnished to the applicant on 20.07.2013. However, such documents admittedly have not been filed with the original petition and it is clearly accepted by the Ld. Counsel for the petitioner that he has not furnish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second bill dated 10.06.2016 for a sum of Rs. 2,38,085 (Rupees Two Lakhs Thirty Eight Thousand Eighty Five and paisa Sixty Five) in all totalling to Rs. 1,18,88,901.35 (Rupees One Crore Eighteen Lakhs Eighty Eight Thousand Nine Hundred One and paisa Thirty Five only) out of which, the applicant admits that Rs. 68,86,105 (Rupees Sixty Eight Lakhs Eighty Six Thousand One Hundred Five) has been paid by the Corporate Debtor and the balance of Rs. 46,86,581 (Rupees Forty Six Lakhs Eighty Six Thousand Five Hundred Eighty One) is due and payable for which a notice dated 03.05.2017 was issued initially by one Mr. A.K. Sahu on behalf of the petitioner. 7. The reply to the above notice was issued on 20.05.2020 by one Gaur & Associates on behalf o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and by an order dated 22.11.2018, referred the matter to Arbitration. 12. There upon the applicant/Operational Creditor filed petition before the Hon'ble High Court of Delhi under Section 11(6)(a) of the Arbitration and Conciliation Act, 1986 r/w. clause 2 of the scheme of Appointment of Arbitrators, 1996 of the Delhi High Court Rules for Appointment of Arbitrators (at page 67; Annexure R-9 of the reply) seeking for the following reliefs: "(a) Appoint an independent and impartial sole arbitrator for referring to and adjudicating the claim of petitioner against the respondent, in the interest of justice. (b) Pass such other or further order, direction or relief which this Hon'ble Court may deem just, fit and appropriate in the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of Rs. 68,86,105 (Rupees Sixty Eight Lakhs Eighty Six Thousand One Hundred Five) which has been already paid by the Corporate Debtor. The Ld. Counsel for the Petitioner was asked to explain how the petition is maintainable; in view of two important factors namely limitation and pendency of Arbitration Proceedings, which is a fall out of the series of notices and the Suit proceedings with reference to Arbitration. 17. On the plea of Limitation, Ld. Counsel for the applicant stated that the various dates are mentioned in the Part-IV, on which the amount fell due. The date on which debt fell due is 07.10.2015 and the subsequent bill dated 10.06.2016 would extend the limitation period based on the work order dated 20.07.2013. 18. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this petition of i.e., on 27.01.2020. In view of the above provision, this petition is not maintainable. It is contrary and in violation of the Code. 23. Furthermore, the plea of limitation has relevance in the present case. The last relevant date of default is shown as 07.10.2016. Reckoned from this date, this petition will fail on account of limitation. 24. The plea that Section 14 of the Limitation Act, 1963 will save the present case does not find merit. At the time of filing of the petition, i.e., on 27.01.2020, the Petitioner/Applicant knows about the pendency of Arbitral Proceedings and should have withdrawn the same at the time of filing and prosecuting the matter before this Tribunal. The afterthought to withdraw the Arbitra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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