2021 (3) TMI 1277 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational creditors - existence of debt and dispute or not - time limitation - HELD THAT - From the perusal of the Bank Statements, this is clear that Bank Statement for the period from 05.05.2017 to 29.05.20t7 and25.02.2019 to 16.10.2019 only have been filed in the support of the claim. The invoices are from the period of 19.05.2015 to 09.1.2.20t6 but no Bank Statements pertaining to this period have been enclosed along with the petition. Ld. Counsel for the Petitioner state that ₹ 2,00,000/-(Two Lakh) received from the Corporate Debtor on 17.05.2017 was already adjusted towards dues and therefore only the balance amount is claimed in the application. The petitioner in the application has claimed LB % as the interest per annum though he is not entitled to any interest. The petitioner has failed to satisfy this Adjudicating Authority on the total amount due and payable. It is clearly a time barred debt. Since, the period of the invoices is from the date 19.05.2015 to 09.12.2016 and 16 out of 17 invoices filed by the petitioner are clearly time barred the argument of the Ld. Counsel for the petitioner on the issue of limitation that Rupees two lakh has been received on 17.05.2017 is negated. As per the judgement of the Hon'ble High Court and Hon'ble NCLAT this application ought to have been filed within the period of three years from the date of default of invoices. This application is clearly barred by limitation. Furthermore, petitioner has not filed the Statement of Account for the entire period of transactions to satisfy this Adjudicating Authority that the amount was due and payable - Petition dismissed.

Summary

Issues:
- Application under Section 9 of the IBC for recovery of a sum of ?55,66,694.76
- Maintainability of the application by the proprietary concern under IBC
- Authenticity of documents provided by the petitioner
- Time-barred nature of the debt based on the invoices
- Claim for interest by the petitioner
- Statutory pecuniary jurisdiction of NCLT

Analysis:
The application was filed under Section 9 of the IBC seeking recovery of a specific sum from the Corporate Debtor. The petitioner claimed that the amount was due and payable for supplies made to the Corporate Debtor. The petitioner provided details of invoices raised between 19.05.2015 to 09.12.2016, totaling 17 invoices. The petitioner also issued a demand notice under Section 8 of the IBC before filing this application.

The respondent contended that the application by the proprietary concern was not maintainable under the IBC. Additionally, the respondent raised concerns about the authenticity of documents provided by the petitioner, alleging that an acknowledgment dated 16.02.2019 was false. The respondent also argued that there were delays in supplies and that the application was time-barred.

Upon examination, the Tribunal found that most of the invoices provided by the petitioner were beyond the 3-year limitation period, except for the last invoice dated 09.12.2016. The petitioner failed to demonstrate that the transactions constituted a running account. The Tribunal noted that the claim for interest by the petitioner was not justified, and the petitioner did not provide a complete Statement of Account for the entire transaction period.

Regarding the statutory pecuniary jurisdiction of the NCLT, the respondent argued that the application exceeded the jurisdiction limit. However, the Tribunal clarified that the application was filed before the jurisdiction limit was raised to ?1 crore and was within the adjudicating authority's purview at the time of filing.

Ultimately, the Tribunal dismissed the application, ruling it as time-barred and lacking sufficient evidence to establish the amount as due and payable. The petitioner's failure to meet the legal requirements, including the limitation period and interest claim, led to the dismissal of CP (IB) No. 152/CTB/2019.