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TMI Blog2018 (6) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... principle of Res-Judicata is applicable to the present proceeding is unsustainable. Issue (iii) - With regard to the submissions of applicability of limitation to the present proceedings, it is on record that the Applicant has issued demand notice dated 24.05.2017 and thereafter the Respondent raised the dispute. In considered view, the notice has been issued within the period of three years of limitation i.e. from 13.08.2014, and there was a payment of ₹ 20,00,000/- on that day, and it was replied by the Respondent and therefore the submission that the present proceeding is barred by limitation is not accepted and unsustainable. In view of that answer the question above in negative. Issue (iv) - with regard to the question as to whether the Applicant has made out a case to invoke the jurisdiction of this Tribunal under I & B Code, it is on record that the Respondent owes money to the Applicant and the Respondent never disputed the same till the issuance of the demand notice dated 24.05.2017. The quality of the coal was never disputed by the Respondent and there is no document filed by the Respondent before this Tribunal. Therefore conclude that the Applicant has made o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 04.11.2013 for the purpose of supplying Non cooking Coal in bulk of Indonesian Origin. In pursuance of the said agreements the coal was supplied and it was lifted by the Respondent between November, 2013 to February, 2014 and the Respondent owes an amount to the tune of ₹ 2,69,75,480/- for the supplies made under the said High Seas Sales Agreement dated 04.11.2013. The Respondent also owes to the Applicant to the tune of ₹ 4,58,455/- for the earlier supplies. After several demands, the Respondent paid an amount of ₹ 15,00,000/- on 15.04.2014. Since the Respondent was unable to pay its dues of ₹ 2,59,33,935/-, the Applicant issued a notice dated 03.07.2014 under section 434 of the Companies Act, 1956 and in response to the said notice the Respondent paid an amount of ₹ 20,00,000/- on 13.08.2014. As the Respondent failed to pay the balance amount of ₹ 2,39,33,935/-, the Applicant filed a winding up petition before Hon ble High Court of Madras and on constitution of NCLT Benches, the same was transferred to this Tribunal. As the Applicant has not submitted relevant information required to be submitted on or before 15.07.2017, this Tribunal abated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms duty by certifying that the coal imported is a Steam Coal. The Customs Authorities have also issued show cause notice on 27.03.2013 and directed the Respondent to pay ₹ 79,67,557/- towards differential duty, ₹ 60 lakhs towards penalty and ₹ 71 lakhs as fine vide order dated 21.02.2014. In receipt of the demand notice, the Respondent issued a letter dated 06.07.2013 to the Applicant and informed them about withholding of the payment. The Respondent challenged the order dated 21.02.2014 before the High Court in a Writ and the High Court has also passed an interim injunction. The Respondent had also challenged the order dated 21.02.2014 before CESTAT and subsequently it was informed to the Respondent that there is a case pending before the Supreme Court and the present appeal before CESTAT would be proceeded further after the order of the Supreme Court. The learned Counsel for the Respondent has further submitted that the Applicant has calculated the total claim amount under two invoice value covered under the High Sea Sales Agreement dated 04.11.2013 and in Form 3 demand notice the Applicant has quoted 10 invoice numbers from November 2013 to February, 2014. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment was made on 13.08.2014 and the demand notice was issued on 24.05.2017. Section 238 of the I B Code, 2016 is having an overriding effect over all other laws in force, therefore, the law of limitation does not have application to the proceedings under the I B Code. The entire counter statement relates to the supplies made by the Applicant before the High Seas Sales Agreement dated 04.11.2013 and the Respondent never raised any dispute about the quality and therefore, the Respondent effected the payment even as late as 15.04.2014. With regard to the various invoices, the learned PCS for the Applicant has submitted that the Respondent has taken delivery of the coal in small quantities and invoices for such small delivery was raised by the Applicant. The Respondent has not raised any dispute till issuance of demand notice dated 24.05.2017 even after the communication received while the winding up petition was pending before the High Court. Only after the demand notice was issued to the Respondent on 24/05/2017, irrelevant issues to delay the proceedings are raised. In view of the above submission, the learned PCS of the Applicant prayed for admitting the petition and initiate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was transferred to this Tribunal on its constitution. It is also on record that on the failure of the Applicant (the petitioner therein) in submitting required information, the petition was abated as per the notification of Ministry of Corporate Affairs No. GSR 732(E) dated 29.06.2017 and in the same notification the parties are given liberty to file fresh petition under I B Code, 2016, therefore, the submission that the principle of Res-Judicata is applicable to the present proceeding is unsustainable. Issue (iii) - With regard to the submissions of applicability of limitation to the present proceedings, it is on record that the Applicant has issued demand notice dated 24.05.2017 and thereafter the Respondent raised the dispute. In my considered view, the notice has been issued within the period of three years of limitation i.e. from 13.08.2014, and there was a payment of ₹ 20,00,000/- on that day, and it was replied by the Respondent and therefore the submission that the present proceeding is barred by limitation is not accepted and unsustainable. In view of that I also answer the question (iii) above in negative. Issue (iv) - with regard to the question as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ienating or disposing of by the corporate debtors any of its assets or any legal right or beneficial interest therein; (iii) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Re construction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002) (iv) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 16. The supply of essential goods or services of the Corporate Debtor shall not be terminated or suspended or interrupted during moratorium period. The provisions of Sub-section (1) of Section 414 shall not apply to such transactions, as notified by the Central Government. 17. The IRP so appointed shall comply with the provisions of sections 13(2), 15, 17 18 of the Code. The directors, Promoters or any other person associated with the management of Corporate Debtor are directed to extend all assistance and cooperation to the IRP as stipulated under Section 19 and for discharging his functions under Section 20 of the I B Code. 18. The petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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