TMI Blog2022 (9) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... ent on 04.04.2018. Having regard to the fact that the Legal Notice and the Demand Notice are within three years of the last payment made i.e., 16.03.2015, the Application is well within the limitation period. However, perusal of the material on record read together with the grounds of Appeal and the Rejoinder Affidavit, it is crystal clear that there is an admitted dispute between the parties. The Appellant themselves are admitting the existence of a dispute which is neither spurious or mere bluster. Further there is a Civil Suit O.S. NO. 271/2015 filed before the Additional District Judge, Kakenada for the amount claimed to be in default and is pending adjudication. This Appeal was filed with a delay of 392 days which was condoned - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Hon ble Supreme Court in the matter of B.K. Educational Services Pvt. Ltd. Vs. Parag Gupta and Associates; Civil Appeal No. 23988 of 2017 dated 11.10.2018 wherein it is observed as follows: It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. 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 application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vanced payment of Rs. 74,32,326/- to Respondent for the supply of goods. In view of the aforesaid fact; the payment cannot be treated to be an Operational Debt and the application under Section 9 filed by the Appellant was not maintainable. Accordingly, no relief can be granted. 3. It is the case of the Appellant that they had entered into Seven Sale Agreements with the Respondent- Corporate Debtor between 28.02.2014 to 09.04.2015 for the import and purchase of Palmolien Oil. As per the terms of the Agreement, the Appellant has paid 10 % of the contract value as advance and the same was required to be adjusted at the time of signing of the final delivery. However, on the request of the Appellant, the adjustment of 10% advance amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Notes against the Corporate Debtor for non-delivery, excess amount collected, etc. The last Debit Note was raised on 28.05.2015 for demurrage of USD 51472-Vessel. It is contended that the said dispute of demurrage ultimately led to the breaking of ties between the parties. On 13.11.2015, a Legal Notice was issued on behalf of the Appellant demanding Rs. 10,89,13,983/-. A Demand Notice dated 04.04.2018 was also issued, which is well within the three-year period form the last Debit Note raised. Subsequently, the Section 9 Application was filed on 15.10.2019. 5. It is submitted that the Adjudicating Authority without taking into consideration the last Debit Note, the Legal Notice issued and also the fact that three years has not lapsed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due, the Corporate Debtor paid only Rs. 1,14,31,778/ on 16.03.2015. It is not in dispute that a Legal Notice dated 13.11.2015 was issued and a Demand Notice under Section 8 of the Code was issued on 04.04.2018 and subsequently the Section 9 Application was filed on 26.11.2018. Even if we do not take into consideration the disputed Debit Note dated 28.05.2015, the fact still remains that the last payment was made on 16.03.2015 whereas, the Demand Notice was sent on 04.04.2018. Having regard to the fact that the Legal Notice and the Demand Notice are within three years of the last payment made i.e., 16.03.2015, we are of the considered view that the Application is well within the limitation period. However, perusal of the material on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that such notice must bring to the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute excep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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