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2021 (8) TMI 945 - Tri - Insolvency and BankruptcyMaintainability 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 - The Operational Creditor issued demand notice on 30.01.2019 (annexed at annexure 2 at page No. 12 to the company Petition under section 8 of the Code calling upon the Corporate Debtor to pay the above amount of ₹ 5,99,638/-. It was mentioned in the said notice that the date of default is 31.03.2016. The Operational Creditor also annexed the statement of account relating to the Corporate Debtor as per his books of accounts annexed as Annexure No. 4 at Page 16 to the Company Petition covering from the period 29.07.2015 to 31.03.2016 - As per section 34 of the Evidence Act, mere entries in the books of accounts is not enough to charge the other persons with liability. It is well settled proposition of law that the Operational Creditor or a plaintiff is not entitled for automatic order of admission simply because the defendant did not file any reply nor advance any arguments - this Tribunal is of the considered opinion that the above Company Petition is barred by limitation and is liable to be rejected - Petition dismissed.
Issues:
Initiation of Corporate Insolvency Resolution Process based on default in payment by Corporate Debtor to Operational Creditor. Analysis: The Company petition was filed by the Operational Creditor seeking to initiate Corporate Insolvency Resolution Process against the Corporate Debtor for default in payment. The Operational Creditor alleged that the Corporate Debtor failed to make a payment of ?5,99,638. The Operational Creditor provided detailed submissions outlining the debt owed, the supply of goods, and the repeated failure of the Corporate Debtor to make payments despite reminders and assurances. The Operational Creditor also highlighted that no notice disputing the amount due was received from the Corporate Debtor. A Statutory Demand Notice was sent to the Corporate Debtor, and the debt was not time-barred as per the Operational Creditor's claims. The Tribunal noted that the Corporate Debtor did not file a reply and appeared through their advocate but failed to participate effectively in the proceedings. The Tribunal observed that no settlement took place despite requests for time. Ultimately, the Tribunal found that the claim made by the Operational Creditor was barred by limitation and therefore liable to be rejected. The Tribunal based this decision on the fact that the demand notice issued by the Operational Creditor was beyond three years from the alleged last payment date, rendering the claim time-barred. The statement of account provided by the Operational Creditor lacked certification or signature from the Corporate Debtor, making it legally insufficient to establish liability. The invoices submitted were also beyond the three-year limit, with amounts below the threshold limit of ?1 lakh. The Tribunal emphasized that the absence of a reply from the defendant does not automatically entitle the plaintiff to an admission order. In conclusion, the Tribunal dismissed the Company Petition, ruling that it was barred by limitation and therefore rejected.
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