TMI Blog2022 (11) TMI 1156X X X X Extracts X X X X X X X X Extracts X X X X ..... arred by the laws of limitation and thus you are not entitled to any payment as allegedly claimed by the Appellant - the Appellant in his rejoinder stated that the Appellant as per the agreed terms, completed their works and the Respondent was constrained to engage third party contractor for execution of the balance work which was otherwise within the scope of work of the Appellant. There is dispute between the parties prior to filing Section 9 application regarding work in question and also invoices raised by the Appellant between 02.11.2010 to 10.12.2012 - there are no merit in the instant Appeal, the impugned order dated 19.01.2021 passed by the Adjudicating Authority (National Company Law Tribunal, Guwahati Bench, Guwahati) in the petition is hereby affirmed - appeal dismissed. - Company Appeal (AT) (Insolvency) No. 246 of 2021 - - - Dated:- 25-11-2022 - [Justice Anant Bijay Singh] Member (Judicial) And [Ms. Shreesha Merla] Member (Technical) For the Appellant : Mr. Arik Banerjee, Mr. Shashwat Anand, Mr. Shashwat Parihar, Advocates.CA Arun Gupta For the Respondent : Mr. Arvind Nayar, Sr. Advocate with Ms. Vanita Bhargava, Mr. Vivek Jhunjhunwala, Ms. Wamika Treh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has unequivocally admitted the sum due from them to the Appellant for the work done in respect of the two work orders. The Appellant as Operational creditor has made various demand for payment of the sum due from 2013 till March 2018. The demand notice issued by the Appellant to the Corporate Debtor to which there was no reply by the corporate debtor even after receipt of the same by putting its seal, stamp and signature. Thereafter, the Appellant moved a Petition under Section 9 of the IBC before the Adjudicating Authority and after hearing the parties the Adjudicating Authority passed the order impugned. Hence this Appeal. Submissions on behalf of the Appellant 3. The Ld. Counsel for the Appellant during the course of argument and in his memo of Appeal along with written submissions submitted that the Company Petition was dismissed by the Adjudicating Authority only on the ground that the invoices are beyond three years from the date of filing of the company petition. The Adjudicating Authority while passing the impugned order failed to take into consideration that the order dated 25.10.2019 passed by the Adjudicating Authority whereby the Respondent were directed to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er two interlocutory applications which was fixed for passing orders, which is a gross violation of the principles of Natural Justice. 6. It is further submitted that while passing the impugned order, the Adjudicating Authority relying the judgment dated 14.08.2020 passed by the Hon ble Supreme Court rendered in Civil Appeal No. 6347 of 2019 in the case of Babulal Vardharji Gurjar Vs. Veer Gurjar Aluminium Industries Pvt. Ltd. Anr. held that if there is any default above three years from the date of filing of the company petition is barred by limitation. That there is no denial to such proposition, however, the judgment goes on to say if there is any acknowledgement either in the books of accounts or in any financial statements by the Corporate Debtor of the dues of the Operational Creditor, then such acknowledgement has given fresh cause of action ever time to the Creditor to approach the Tribunal under the provisions of the IBC. Such interpretation of the judgment was ignored while passing the impugned order. Th recent judgment of the Hon ble Supreme Court in the case of Dena Bank Vs. C. Shivakumar Reddy and Anr. in Civil Appeal No. 1650 of 2020 has made it clear that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manding the payment of INR 1,98,95,546 allegedly due against 78 invoices. The Respondent issued a reply dated 04.04.2018, wherein the Respondent pointed out that the 78 invoices ranged from 02.11.2010 to December, 2012, while the last payment made by the Respondent to the Appellant was on 11.02.2013. It was also stated that the alleged debt being claimed by the Appellant was hopelessly time barred and thus not recoverable. It was also mentioned that the Appellant had deliberately violated the terms and conditions of the work orders and did not completely fulfil their obligations under the work orders, by not providing adequate manpower for the project and not finishing the work, despite repeated requests by the Appellant. Consequently, the Respondent was constrained to engage third-party contractors at an escalated price to finish the work. 10. It is further submitted that the Appellant has not approached this Tribunal with clean hands and has suppressed material facts and documents, therefore, it is guilty of misleading this Tribunal. The Appellant has made blatantly incorrect and false accusations against the Respondent. The Appellant has falsely averred that vide emails dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... number of invoices attached with the impugned notice as dealt with herein, all the alleged bills as raised by you started from 02.11.2010 ending 10.12.2012 and the payments as received by you were lastly on 11.02.2013 and so the alleged bills as raised by you were strictly barred by the laws of limitation and thus you are not entitled to any payment as allegedly claimed by the Appellant. Further, we also observe that the Appellant in his rejoinder stated that the Appellant as per the agreed terms, completed their works and the Respondent was constrained to engage third party contractor for execution of the balance work which was otherwise within the scope of work of the Appellant. 13. Taking all the facts aforenoted, we are of the view that there is dispute between the parties prior to filing Section 9 application regarding work in question and also invoices raised by the Appellant between 02.11.2010 to 10.12.2012. Therefore, we do not find any merit in the instant Appeal, the impugned order dated 19.01.2021 passed by the Adjudicating Authority (National Company Law Tribunal, Guwahati Bench, Guwahati) in C.P. (IB) No. 26/GB/2019 is hereby affirmed. Accordingly, the instant Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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