TMI Blog2022 (9) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... ebt under section 18 of the Limitation Act, 1963. However, even if the purported acknowledgment dated 09.03.2015 were to be considered, the resultant limitation period would still come to an end on 09.03.2018. Even if, under section 14 of the Limitation Act, 1963, the period of pendency of the winding up petition No. 161 of 2016 (from February 2016 to 29.03.2016) is excluded, the limitation period will still only extend till may 2018 - The limitation period in the instant case would resume from 29.03.2016 and would have been extinguished by May 2018. The proceedings under section 9 of the Code, however, were filed on 31.12.2019. The instant petition, therefore is barred by limitation. This Adjudicating authority is satisfied that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditor is engaged in the business of supplying agrochemicals, insecticides, herbicides, pesticides etc. 5.2 Pursuant to various purchase orders placed by the Corporate Debtor in 2012, the Operational Creditor, from time to time, supplied varieties of agrochemicals to the Corporate Debtor. Accordingly, the Operational Creditor raised tax invoices upon each delivery. 5.3 The Corporate Debtor received the delivered goods without any protest or demur as to the quality, quantity or branding of the goods. Against the supplies made by the Operational Creditor on and from 2012, the Corporate Debtor used to make on account payment, making the account of the Corporate Debtor a running and continuous one. 5.4 The total amount of debt due from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and continued till 04.10.2019. the date for calculating limitation once again starts running on and from 04.10.2019 for the balance of the three years. As such, this petition is well within limitation. 5.9 Upon the commencement of the Code, and the order as passed by the Hon ble Apex Court, the Operational Creditor issued notice under section 8 of the Code on 03.12.2019 upon the Corporate Debtor. The Corporate Debtor has not replied to the demand notice. 6 Submissions on behalf of the Corporate Debtor: 6.1 The Corporate Debtor has submitted that the Operational Creditor has admitted that the date of first supply is 31.01.2012 and the date of last supply is 15.05.2012. Further, the last payment was made on 05.08.2014. As such, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Creditor cannot take benefit of section 14 of the Limitation Act, 1963. 7.2 Regarding the clubbing of purchase orders, the Operational Creditor has submitted that only purchase orders forming the part of separate agreements and separate cause of action cannot be clubbed, and the said proposition of law does not apply to the instant matter. 8 Analysis and Findings: 8.1 Heard the Ld. Counsel for the Operational Creditor and the Ld. Counsel for the Corporate Debtor and perused the records. 8.2 The Operational Creditor in the instant case has failed to explicitly mention the date of default by the Corporate Debtor. On page 6 of the petition, the Operational Creditor has mentioned that the date on which the first default occu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment before filing insolvency proceedings under the Code against the relevant tea undertaking under section 16M of the Tea Act 1953, was done away with by the Hon ble Supreme Court in Duncans Industries Limited Vs. A.J. Agrochem (2019) 9 Supreme Court Cases 725, decided on 04.10.2019 . d. The period from the filing of the winding up petition till the Hon ble Supreme Court s decided on 04.10.2019 shall be excluded while computing of the limitation period, under section 14 of the Limitation Act, 1963. 8.5 On perusal of records, it can be seen that the purported acknowledgment dated 09.03.2015 of the Corporate Debtor in a letter from the Operational Creditor addressed to the Corporate Debtor wherein, the Corporate Debtor has acknowledge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant petition, therefore is barred by limitation. 8.7 In light of the above facts and circumstances, this Adjudicating authority is satisfied that the instant petition is both incomplete and barred by limitation and therefore is liable to be dismissed. 9 Consequently, C.P.(IB) No. 166/KB/2020 shall stand rejected. Needless to say, the Operational Creditor is free to pursue its remedies under any other law, and the dismissal of the present petition shall not stand in the way of pursuit of such remedies. 10 The registry is directed to send e-mail copies of the order forthwith to all the parties and their Ld. Counsel for information and for taking necessary steps. 11 Certified Copy of this order may be issues, if applied for, upon c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
