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2021 (3) TMI 227 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor committed default in payment of the dues - Existence of debt and dispute or not - HELD THAT - Wherein the instant case it is born from the record that the Appellant have issue cheque on 12.01.2016 for sum of ₹ 44,298/- in favour of the Respondent No. 1 which amounts from acknowledgment of the debt although the said cheque dishonoured for the reason payment stopped by drawer (Exhibits D D-1) at page 25 to 26 of the petition filed before the NCLT - From the perusal of the records at page 49 of the Appeal Paper Book which the Application under Section 9 of the IBC filed before the NCLT by Respondent No. 1 Part IV Colum 2 the Debt from which such Debt fell due The Respondent made part payment on 16.02.2016, after which no payment was made and cheque issued on 12/01/2016 was returned dishonoured . The Learned Counsel for the Appellant have failed to make out any ground and the finding recorded by Ld. Adjudicating Authority, so we are affirmed the finding recorded in the impugned order passed by Ld. Adjudicating Authority, National Company Law Tribunal, Mumbai Bench. There are no merit in this Appeal - appeal dismissed.
Issues Involved:
1. Default in payment of dues. 2. Application under Section 9 of the Insolvency and Bankruptcy Code (IBC), 2016. 3. Limitation period for the claim. 4. Service of Demand Notice. 5. Acknowledgment of debt and dishonored cheque. 6. Applicability of Supreme Court judgment on limitation. Detailed Analysis: 1. Default in Payment of Dues: The Respondent No. 1 (Operational Creditor) claimed that the Appellant (Corporate Debtor) defaulted in paying dues for goods sold and supplied. The total outstanding amount was ?7,15,940 as per twelve invoices raised between 18.10.2014 and 14.02.2015. The Appellant made a partial payment of ?40,000, leaving an outstanding amount of ?6,75,940 along with interest. 2. Application under Section 9 of the Insolvency and Bankruptcy Code (IBC), 2016: The Operational Creditor filed an application under Section 9 of the IBC, 2016, for initiating Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. The National Company Law Tribunal (NCLT), Mumbai Bench, admitted the application and appointed an Interim Resolution Professional. 3. Limitation Period for the Claim: The Appellant argued that the claim was barred by limitation under Section 238A of IBC 2016 read with Article 137 of the Limitation Act. The invoices dated back to 2014 and 2015, and the demand notice was issued on 16.10.2018, which the Appellant claimed was beyond the three-year limitation period. 4. Service of Demand Notice: The Appellant contended that the demand notice under Section 8 of the IBC, dated 16.10.2018, was not served to them. However, the Respondent No. 1 provided evidence that the notice was sent via Registered AD and was received by the Appellant. The Appellant did not reply to the demand notice. 5. Acknowledgment of Debt and Dishonored Cheque: The Appellant issued a cheque dated 12.01.2016 for ?44,298, which was dishonored with the reason "Payment stopped by drawer." This dishonored cheque was considered as an acknowledgment of debt. The NCLT noted this fact and the initiation of legal proceedings under Section 138 of the Negotiable Instruments Act. 6. Applicability of Supreme Court Judgment on Limitation: The Appellant relied on a Supreme Court judgment (1967 (1) SCR 190) to argue that the claim was time-barred. However, the Tribunal found that this judgment was not applicable to the present case. The acknowledgment of debt through the dishonored cheque dated 12.01.2016 fell within the limitation period, thus making the claim valid. Conclusion: The Tribunal affirmed the findings of the NCLT, Mumbai Bench, and held that the application under Section 9 of the IBC was rightly admitted. The acknowledgment of debt through the dishonored cheque dated 12.01.2016 was within the limitation period, and the demand notice was duly served. The appeal was dismissed, and the impugned order dated 13.02.2020 was upheld. No order as to costs.
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