TMI Blog2024 (3) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... ir business operations. In the absence of any documentary evidence which provides foundational basis to the claim of the Appellant that there was a running account, the reliance placed on the judgment of this Tribunal in SHRI ABHINANDAN JAIN, DIRECTOR RISA INTERNATIONAL LTD. VERSUS TANAYA ENTERPRISES PVT. LTD. [ 2021 (3) TMI 939 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH , NEW DELHI] does not come to the aid of the Appellant. Furthermore, on perusal of the reply to the Section 8 Demand Notice sent by the Corporate Debtor on 07.01.2020, as placed at pages 127-136 of APB it comes to notice that it has been categorically denied that any operational debt was due qua the Operational Creditor - there are no merit in the argument a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , [ Barun Mitra ] Member ( Technical ) And [ Arun Baroka ] Member ( Technical ) For the Appellant : Present but appearance not marked For Respondents : Mr. S. K. Sharma and Ms. Dyuti Ghai , Advocates JUDGMENT [ Per : Barun Mitra , Member ( Technical ) ] The present appeal filed under Section 61 of Insolvency and Bankruptcy Code 2016 ( IBC in short) by the Appellant arises out of the Order dated 31.10.2023 (hereinafter referred to as Impugned Order ) passed by the Adjudicating Authority (National Company Law Tribunal, Division Bench-I, Ahmedabad) in CP(IB) No.355/AHM/2020. By the Impugned Order, the Adjudicating Authority has dismissed the Section 9 petition filed by the Appellant seeking to bring the Corporate Debtor under the rigours of Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been preferred assailing the impugned order. 3. Having noted the principal submissions of the Appellant, we now come to the relevant findings of the Adjudicating Authority in the impugned order which has aggrieved the Appellant, which are as extracted below: 14. We have heard counsels and perused the record. It is not in dispute that the materials were supplied by the Operational Creditor to the Corporate Debtor. However, perusal of the application reveals that the debts are very old and are barred by limitations. We agree with the contentions of the Corporate Debtor as quoted in B. K. Educational Society (supra). No explanation has been given as regards to opening balance how they have arrived and further the Operational Creditor kept q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date for payment shown as 09.04.2011 and 12.11.2016 respectively. When we compare the aforementioned due dates of payment as indicated on these invoices with the date of filing of Section 9 application, clearly enough these 26 invoices are more than three years old from the date of filing of Section 9 application which is 08.09.2020. In the present case, the Appellant has also failed to bring on record any subsequent acknowledgement of liability in writing by the Corporate Debtor in respect of these 26 invoices which could possibly have extended the period of limitation to bring the outstanding dues within three years from date of filing of Section 9 application. 6. Having perused the material on record and after hearing the submissions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st invoice did not attract limitation, the other 26 invoices which have been submitted alongwith it also escapes the bar of limitation on the unsubstantiated pretext of running account of payments. 7. At this stage, we may take note of the decision of the Hon ble Supreme Court in the matter of B.K. Educational Services Pvt. Ltd. Vs. Parag Gupta and Ors. (2019) 11 SCC 633 wherein after considering the statutory provisions of the IBC and the Limitation Act, it has been settled that for filing application under Section 9 of the IBC, Article 137 is attracted. Paragraph 42 of the above judgment reads as follows: 42. It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the ince ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat CIRP is not intended to be adversarial to the corporate debtor but is aimed at protecting the interests of the corporate debtor; (c) that intention of the Code is not to give a new lease of life to debts which are time-barred; (d) that the period of limitation for an application seeking initiation of CIRP under Section 7 of the Code is governed by Article 137 of the Limitation Act and is, therefore, three years from the date when right to apply accrues; (e) that the trigger for initiation of CIRP by a financial creditor is default on the part of the corporate debtor, that is to say, that the right to apply under the Code accrues on the date when default occurs; (f) that default referred to in the Code is that of actual non-payment by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
