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TMI Blog2017 (11) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... n held that demand notice under Section 8 on behalf of the Operational Creditor cannot be issued by any person in the absence of any authority of the Board of Directors, and holding no position with or in relation to the Operational Creditor. However, in the present instance, no such authorization to issue such a notice by the legal Counsel on behalf of the Operational Creditor has been produced before this Tribunal by the petitioner. Thus no merit in the application as filed by the petitioner Company. - (IB)-297(ND)/2017 - - - Dated:- 10-10-2017 - MR. R. VARADHARAJAN, J. For The Petitioner : Arun Khatri, Amit Kumar and Gagandeep Panwar, Advs. For The Respondent : Virender Ganda, Sr. Adv., Shelly Khanna, Amit Dhingra, Amandeep Bawa and Ami Ranjan, Advs. ORDER 1. This is an application filed by the applicant under the provisions of Insolvency Bankruptcy Code, 2016 (for sake of brevity IBC, 2016) claiming to be an Operational Creditor against the Respondent/Corporate Debtor on the basis that a sum of ₹ 20,50,385/- is due and outstanding payable and is in default and under the circumstances, the Corporate Insolvency Resolution Process (CIRP) is required t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. In the meanwhile, from order dated 05.9.2017, it is evident that the respondent Company had duly entered its appearance through its Counsel and a reply has also been filed, to which, the petitioner has also submitted its rejoinder. Perusal of the reply shows that the following contentions are being put forward by negating the claim as well as in relation to the maintainability of the Company Petition : (a) the respondent contends that in view of the pre-existence of a dispute, the petition, as such, is not maintainable. (b) In this regard, it is pointed out that on 5.5.2017, a notice was sent to the respondent Company for its winding up in relation to the amount payable under the Purchase order dated 23.2.2011 and that the said winding up notice was also replied to wherein the payment of ₹ 20,50,385/- being the amount claimed in default herein had been vehemently disputed on the ground that the claim is raised frivolously without fulfilling the obligation on the part of the Creditor/petitioner, pursuant to the understanding between the parties. It is also pointed out that as early as 3.5.2013, an E-mail had been sent by the respondent Company along with a letter dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue which has also been raised is in relation to the debt being barred by limitation as the amount which is claimed to be in default is said to be due even as per the statement of accounts of the petitioner since the year 2012-2013 and that the present petition has been filed only on 21.8.2017 (i.e) after more than a period of 3 years. (i) Finally, it is also contended by the respondent that the respondent Company is a profit making company employing approx. 200 employees along with other group Companies and is having a turnover of approximately US $ 500 Million and taking into consideration the same, the respondent Company is fully solvent and there is no question of insolvency as sought to be portrayed by the petitioner. 3. On the part of the petitioner, a rejoinder has been filed reiterating the contents of the petition and also stating that the applicant/petitioner has nothing to do with the Rajasthan Renewable Energy Corporation Limited nor for that matter in relation to the promised subsidy which is sought to be projected as ground for the denial of payment due to the petitioner. 4. Heard the oral submissions of the respective Counsels appearing for the parties in det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 433 of the Companies Act, 2013 which makes Limitation Act applicable to this Tribunal the debt as claimed is barred and cannot be the basis for invoking IBC before this Tribunal. It is also required to observe in this connection the provisions of Section 60 (6) of IBC, 2016 which saves any suit or application by or against the Corporate Debtor, for which, an order of moratorium is in place, from operability of limitation, being the only specific instance where the hand of limitation is withheld. 7. However, in a judgment recently passed by the Hon ble NCLAT on 11th August, 2017 in the matter of Neelkanth Township Construction (P.) Ltd. v. Unban Infrastructure Trustees Limited in Company Appeal (AT) (Insolvency) No. 44 of 2017 has held at paragraph 24 of the said judgment in relation to the point of Limitation as follows : The next ground taken on behalf of the appellant is that the claim of the respondent is barred by limitation, as the Debentures were matured between the year 2011-2013 is not based on law. There is nothing on the record that Limitation Act, 2013 is applicable to I B Code. Learned Counsel for the appellant also failed to lay hand on any of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be due to it from the respondent Company. 11. In addition, we also find credence in the objections raised by the respondent in relation to the defects in compliance with the mandatory procedure prescribed on the part of the petitioner Company. 12. The decision rendered by the Hon ble Supreme Court in the case of Mobilox Innovations v. Kirusa Software Private Limited, being wherein the Hon ble Supreme Court of India has held that even on a plausible dispute raised on the part of the Corporate Debtor, it should be given credence and it is not necessary that the dispute which is sought to be raised should ultimately succeed. The dispute raised here is of two fold nature, one in relation to the quality of goods supplied and its non - satisfactory performance and the other in relation to delay, both of which are seen to be prima-facie plausible dispute and does not seem to be vague and which can be raised as a defence/counter claim before civil courts. Further, it is also pointed out by the Hon ble NCLAT in the case of the matter of Smart Timing Steel Ltd. (supra) that the provisions of Section 9(3)(c) of IBC, 2016 in relation to production of Certificate from the bankers is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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