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TMI Blog2020 (2) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, section 5 of the Limitation Act may be applied to condone the delay in filing such application. Thus, not only is the Petition devoid of merits but, it is also barred by limitation - petition dismissed. - CP (IB) NO. 1762/MB/C-IV/2018 - - - Dated:- 25-11-2019 - Rajasekhar V.K., Judicial Member And Ravikumar Duraisamy, Technical Member Milli Murkudkar for the Applicant. Sangharsh V. Waghmare for the Respondent. ORDER Rajasekhar V.K., This is a Company Petition filed under section 9 of the Insolvency Bankruptcy Code, 2016 (IBC) by Mahalaxmi Dyes Chemicals Limited ( the Operational Creditor ), a company within the meaning of section 2(20) of the Companies Act, 2013, having CIN U45400MH1995PTC090372, and represented by its Director, Mr Chandrakant Vadilal Shah, on the basis of a Board Resolution dated 09.01.2018 seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Eskay Bee International Private Limited ( the Corporate Debtor ). 2. The Corporate Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porate Debtor 6. Mr Sangharsh V. Waghmare, Learned Advocate i/b M/s Optima Legal Solutions, Advocates, appeared on behalf of the Corporate Debtor and made his submissions. 7. The Corporate Debtor has filed a reply to the Petition on 19.11.2018, denying all allegations. In brief, the Corporate Debtor's defence is as follows: - (a) The Corporate Debtor and Operational Creditor are involved in business where there are two-way transactions between the parties. In other words, there is supply and purchase from the Operational Creditor's side to the Corporate Debtor and vice versa (para 2 at page 1 of Written Statement on behalf of the Respondent of the Petition); (b) At the time of purchase and sale of materials, the Corporate Debtor had issued security cheques to the Operational Creditor, which were deposited without any prior intimation to the Corporate Debtor. The Operational Creditor also filed criminal complaints against the Corporate Debtor under section 138 of the Negotiable Instruments Act, 2002 (sic 1881) before the Chief Metropolitan Magistrate's Court at Andheri. Aggrieved by this, the Corporate Debtor filed Criminal Writ Petition before the Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Invoice No.7627 dated 24.02.2014 5 days 02.03.2014 2. Invoice No.7591 dated 25.02.2014 5 days 03.03.2014 3. Invoice No.8027 dated 05.05.2014 5 days 11.05.2014 4. Invoice No.8188 dated 26.06.2014 5 days 03.07.2014 5. Invoice No.8222 dated 05.07.2014 5 days 11.07.2014 13. If we take the last of these dates, the date of default will be 11.07.2014. Alternatively, if we calculate the date of default in terms of each of the invoices, the same would be different and would range between 02.03.2014 and 11.07.2014 as indicated in the Table in the preceding paragraph. Either way, the date of default cannot be taken to be 24.02.2014 as claimed at page 4 of the Petition. 14. Secondly, there is no proof of service of invoices on the Corporate Debtor, either in the form of signatures on the invoices or by way of Delivery Challans or Lorry Receipts annexed to the Petition. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter of B.K. Educational Services (P.) Ltd. v. Parag Gupta Associates [2018] 150 SCL 293, has clearly laid down in para 27 as follows:- '27. It is thus clear that since the Limitation Act is applicable to applications filed under sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. The right to sue, therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, section 5 of the Limitation Act may be applied to condone the delay in filing such application.' [para 48, 2018 SCC OnLine SC 1921] 21. In Sagar Sharma v. Phoenix ARC (P.) Ltd. [2019] 110 taxmann.com 50 (SC), the Hon'ble Supreme Court reiterated the ratio laid down in B.K. Educational Services (P.) Ltd. (supra) and stated as follows:- '3. Article 141 of the Constitution of India mandates that our judgments are followed in letter and spirit. The date of coming into force of the IBC Code does not and cannot form a trigger point ..... X X X X Extracts X X X X X X X X Extracts X X X X
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