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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 ..... e is situated at Agarwal House, 5 Yeswant Colony, Y.N. Road, Indore - 452 003 and the respondent is also a Public Company registered under the Companies Act, 1956 having its registered office at 19/7, West College Road, Arumbakkam, Chennai - 600 106. 4. The learned Practicing Company Secretary for the Applicant submitted that the Applicant and Respondent had entered into Two High Seas Sale Agreements both on 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 Rs. 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 Rs. 4,58,455/- for the earlier supplies. After several demands, the Respondent paid an amount of Rs. 15,00,000/- on 15.04.2014. Since the Respondent was unable to pay its dues of Rs. 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 Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot extend the period of limitation. Therefore, the petition is barred by limitation. Further submitted that the Applicant has supplied "Bituminous coal" instead of "Steam coal" which was confirmed by the Customs Authorities on their own. The Customs Authorities have also filed cases against the Respondent on the ground that the Respondent has availed concession of customs 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 Rs. 79,67,557/- towards differential duty, Rs. 60 lakhs towards penalty and Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inter-alia that the earlier CP was not dismissed on merits and it was only abated and the Applicant is eligible to file the fresh Application under the I & B Code in pursuance to second proviso to Rule 5 of Companies (Transfer of Pending Proceedings), Rules, 2016. He has further submitted that the petition is not barred by limitation as the part payment 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 24.05.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -I conclude that the there is not any dispute between the Applicant and the Respondent in relation to the above said transaction. Issue (ii) - With regard to the application of principle of Res-Judicata to the present proceedings, it is on record that the Applicant has filed a winding up petition before the High Court and the same 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, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder to prohibit all of the following, namely: (i) The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority. (ii) Transferring, encumbering, alienating 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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