2019 (1) TMI 1183 - Tri - Insolvency and Bankruptcy

Initiation of the corporate insolvency resolution process - pre-existing dispute between the parties before receipt of demand notice - Whether claim is barred by limitation ? - Held that - The date of last payment made to the applicant by the corporate debtor is relevant for the purpose of limitation is May 4, 2015 hence, limitation expired on May 4, 2018. Further reliance of counsel for the applicant on the date of demand notice, April 17, 2018 is misplaced, because date on which this petition is filed is August 20, 2018 and limitation is to be counted from the date of last transaction to filing of this petition, which is on August 20, 2018 whereas limitation expired on May 4, 2018. Hence this claim is barred by the limitation. The reply of corporate debtor to the demand notice cannot be taken as acknowledgment of the debt. To the contrary, the corporate debtor has denied the claim calling it false and reiterated their counter claim of ₹ 1,17,80,951 on account of extraordinary delays in delivery/non-delivery along with interest conveyed vide e-mail dated July 23, 2015. Therefore, it is held that the claim is time barred. The documents on record that the supplies were delayed not only as per original supplies schedules but also as per the mutually agreed upon revised schedule. The respondent has placed on record the document to demonstrate the loss due to abnormal delay and non-supply of the goods from the applicant which resulted in selling the consignment at a discount and also cancellation of orders. The claim for loss was conveyed to the applicant on July 23, 2015, i.e., much prior to the issue of the demand notice. Thus it is clear that the dispute existed on July 23, 2015 much before the demand notice was served on April 17, 2018. Following the principle laid down by the hon ble Supreme Court in the matter of Mobilox Innovations P. Ltd. v. Kirusa Software P. Ltd. 2017 (9) TMI 1270 - SUPREME COURT OF INDIA and in view of the above discussion, it is held that there was an existing dispute between the operational creditor and corporate debtor much prior to the issuance of demand notice. Further this claim is also barred by limitation, hence this application is liable to rejected.

Summary

Issues:
1. Whether there was a pre-existing dispute between the parties before receipt of the demand notice?
2. Whether the claim is barred by limitation?

Analysis:

Issue 1: Pre-existing Dispute
The applicant, an operational creditor, filed an application under section 9 of the Insolvency and Bankruptcy Code, 2016 against the respondent, a corporate debtor, for unpaid dues. The applicant claimed that the respondent failed to clear outstanding dues amounting to ?80,23,368, which included principal and interest. The respondent countered, alleging that the applicant caused losses by failing to deliver goods on time, leading to order cancellations and financial losses. The respondent emphasized a pre-existing dispute and claimed that the applicant's actions caused substantial financial harm. The applicant, in response, argued that there was no legitimate dispute and that the deliveries were mutually rescheduled and accepted by the respondent without objection. The Tribunal examined the communications and found that a dispute existed prior to the demand notice, as evidenced by the respondent's claims of losses due to delayed deliveries.

Issue 2: Limitation
The respondent contended that the claim was time-barred, citing the last transaction on May 4, 2015, as the relevant date for limitation. The applicant argued that the claim was not time-barred, relying on a demand for payment on June 25, 2015, within the limitation period. However, the Tribunal determined that the claim was indeed barred by limitation, as the last payment was made on May 4, 2015, and the demand notice was issued on April 17, 2018, beyond the limitation period. Additionally, the respondent's reply to the demand notice did not constitute an acknowledgment of debt but rather a denial and counterclaim for losses incurred. The Tribunal referenced the Supreme Court's directive in Mobilox Innovations P. Ltd. v. Kirusa Software P. Ltd., emphasizing the need for a genuine dispute and rejecting spurious defenses. Consequently, the Tribunal concluded that there was a pre-existing dispute and the claim was time-barred, leading to the rejection of the application.

In conclusion, the Tribunal dismissed the application under section 9 of the Insolvency and Bankruptcy Code, 2016, citing the existence of a pre-existing dispute and the claim being barred by limitation.