TMI Blog2022 (11) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be entitled to 20% of the income earned from the business after 31.07.2013 - Even for the sake of arguments, if it is presumed that MOU has been duly executed between the parties yet the application under Section 9 of the Code filed by the Appellant on 13.04.2019 in respect of Rs. 4.50 Crores is beyond the period of limitation because right to apply accrued from 31.07.2013 and the period three years would be over by 31.08.2016. The argument of the Appellant that the subsequent payment made in the year 2018 by the Respondent would attract Section 19 of the Limitation Act, 1963 is totally fallacious. The petition filed under Section 9 of the Code to claim of Rs. 4.50 Crores on the basis of the MoU dated 24.08.2013 is clearly barred by l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Corporate Insolvency Resolution Process (in short CIRP ) on account of nonpayment of a sum of Rs. 7,50,77,317/- as principal, claimed in terms of a Memorandum of Understanding (in short MOU ) dated 24.08.2013, has been dismissed. 2. In brief, the case set up by the Appellant is that the Respondent is in the business of supply, trading and exports of agriculture extraction products and the Appellant has been engaged as a consultant for handling all day-to-day activities of the Corporate Debtor. The MoU dated 24.08.2013 was entered into between the Appellant and Shantilal Ratanchand Lunkad, authorized signatory of the Corporate Debtor as per which the Respondent agreed to pay Rs. 4.50 Crores with interest at the bank deposit ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the Adjudicating Authority has committed an error in rejecting the MOU on the ground that it does not bear the seal of the Company which is not necessary for the purpose of executing the same. It is further submitted that the Appellant could not have, in any way, found out as to whether the company has authorized the signatory of the MOU because it is a part of the indoor management. It is further submitted that in so far as, the issue of limitation is concerned, though the MOU was executed on 24.08.2013 but the Respondent has made the payment in the year 2018, therefore, the application filed under Section 9 of the Code on 13.04.2019 was within limitation. 5. On the other hand, Counsel appearing on behalf of the Respondent h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oli S/o. Mr. Shanti Lal Jaroli an adult and Indian Inhabitant residing at C-506, Gokul Garden, Thakur Complex, Kandivli (E), Mumbai 400 101 hereinafter referred to as the The Consultant (which expression shall unless it be repugnant to the context or meaning thereof be deemed to mean and include his heirs, executors, administrator, assignee). Whereas the Company is engaged in the business of Exports of Agri Extraction Products, Leasing, Medical etc. And where as the consultant is providing his consultancy right from incorporation of the company. And whereas the company and the consultant desires to reduce the terms and conditions of the understanding in writing. Now this Memorandum of Understanding witnesseth as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o, set and subscribe their respective hands the day and year first hereinabove written. Signed, Sealed Delivered By the withinnamed the Company by the hands of Mr. Shantilal Ratanchand Lunkad the Authorized Signatory In the present of CA Paras Mandot 30, Kamdar Shopping Centre, Opp. Station Vile Park (E) Mumbai-57 Signed, Sealed Delivered By the withinnamed Consultant Shri Prajendra S Jaroli In the presence of CA Paras Mandot 30, Kamdar Shopping Centre, Opp. Station Vile Park (E) Mumbai-57 8. From the bare reading of aforesaid MOU, it is apparent that the alleged past dues of the Appellant were ultimately settled to the tune of Rs. 4.50 Crores as on 31.07.2013 and it was agreed that the said sum shall car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Pg. 216 to 218 which are the payments made towards the professional charges of the Appellant after 31.07.2013 and were not part of the payment of Rs. 4.50 Crores which was alleged to have been settled by the Corporate Debtor through Shantilal Ratanchand Lunkad. Thus, in our considered opinion, the petition filed under Section 9 of the Code to claim of Rs. 4.50 Crores on the basis of the MoU dated 24.08.2013 is clearly barred by limitation as the residuary Article 137 of the Limitation Act, 1963 would apply which provides a limitation of three years from the date when the right to apply accrues. 10. In so far as, the genuineness of the MOU is concerned, nothing has been brought on record as evidence by the Appellant that the executant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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