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TMI Blog2020 (4) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... be referred or read in consonance with section 14 of IBC, 2016. It can safely be concluded that an amount of ₹ 24,36,00,048/- is due and payable by Respondent to the Corporate Debtor - Application allowed. Respondent is directed to make the payment of the said amount o within six weeks from the date of the pronouncement of this order, failing which 12% interest per annum shall be charged from the Respondent on delayed payments till the realization of the whole of amount. - TCP No. 95/2017, MA No. 453 OF 2018 And 114 Of 2019 - - - Dated:- 19-2-2020 - R. Varadharajan, Judicial Member And Anil Kumar B., Technical Member J. Manivannan, Adv. for the Applicant. S.R. Raghunathan, Adv. Rohan Rajasekaran, Adv. and Vigneshwar Elango, Adv. for the Respondent. ORDER Anil Kumar B., 1. This Application has been filed by the Applicant viz. Mr. Ramakrishnan Sadasivan, Liquidator for Surana Industries Limited in Liquidation under sections 35(1)(k), 35(1)(n) and Section 60(5) of the Insolvency and Bankruptcy Code, 2016 seeking reliefs as follows; (a) To direct the Respondent to release the outstanding amount of a sum of ₹ 24,36,00,048 with reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor, the Corporate Debtor supplied goods to the Respondent on various occasions as per the order placed by the Respondent voluminous invoices were issued by the Corporate Debtor upon the Respondent thereon against which the Corporate Debtor maintained regular accounts. As per the statement of accounts of the Corporate Debtor a sum of ₹ 24,36,00,048 is outstanding as due from the Respondent which was duly admitted by the Respondent. However, the Respondent failed to make the payment of the said outstanding amount of ₹ 24,36,00,048, to the Corporate Debtor. f. Meanwhile, the Corporate Insolvency Resolution Process (CIRP) in respect of the Corporate Debtor was initiated under the provisions of Insolvency and Bankruptcy Code, 2016 by an Operational Creditor and the Adjudicating Authority commenced the CIRP by order dated 2-1-2018 and subsequently the Adjudicating Authority commenced the liquidation by order dated 12-10-2018. In these circumstances, the Applicant in the capacity of Liquidator issued demand notice dated 14-5-2018 and reminder notice dated 14-11-2018 to the Respondent calling upon them to pay the outstanding amount to the Corporate Debtor. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating operations in the company had been watching the downward trend since a very long time. b. The issue involved in the said Impugned Application is that, Surana Industries Limited which is in liquidation had supplied various goods to the Respondent on various occasions. The goods supplied are those as specified in the objects clause of the Corporate Debtor. Since Corporate Debtor is in liquidation as per the order dated 12-10-2018, the Official Liquidator viz. the Applicant has initiated the impugned application for claim of the money receivable for the goods supplied by the Corporate Debtor to the Respondent. c. It has been submitted that the claim made by the Applicant amounting to ₹ 24,36,00,048 for dues allegedly pending to M/s.Surana Industries Ltd. for transactions entered into before 12-5-2015, is barred by limitation and liable to be dismissed. Reliance is placed on the judgment of the Hon'ble Supreme Court in the case of B.K. Educational Services (P.) Ltd. v. Parag Gupta Associates [2018] 98 taxmann.com 213/150 SCL 293, wherein it was categorically held that Limitation Act applies to all the applications filed/to be filed u/s. 7 9 of the Insolvency a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omputation of 3 years as per the Limitation Act and it was 16-6-2015. Though the Respondent-Debtor has averred that the recovery proceedings must have been initiated within three years i.e. on or before 16-6-2018, the same can be initiated on or before 25-3-2019 since the Corporate Debtor was under Corporate Insolvency Resolution Process and moratorium was effected from 2-1-2018 to 12-10-2018 thereby such period shall be excluded in computing the period of limitation specified for any suit or application by or against a corporate debtor in accordance with the provisions of sub-section (6) of section 60 of the Insolvency and Bankruptcy Code, 2016. 8. This Tribunal observes that subsequent to posting of this Petition vide M.A./114/2019 in MA/453/2018 in TCP/95/2017 by the Applicant/Corporate Debtor, the matter was initially posted for hearing on 20-2-2019, on which date both the parties were present. Since no reply was filed by the Respondent, time was granted for filing the reply, but no reply has been filed on 29-3-2019, on the next date of hearing, as a result, last and final opportunity is given to the Respondent and the matter was posted on 30-4-2019, on which date the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d episode right from the inception of proceedings in this Tribunal on 20-2-2019 till 21-10-2019 for a period of eight (8) months during which the Respondent has attempted to fabricate the story of cancellation of the alleged mutual owing purported to have been recorded by way of simple letter for squaring off the legitimate claim of the Applicant against Corporate Debtor to the tune of ₹ 24,36,00,048 (Rupees Twenty Four Crores Thirty Six Lakhs and Forty Eight only). It is clarified that such a huge claim against the Respondent, due to the Corporate Debtor cannot just simply be set off under the pretext of an amount allegedly to be due from (i) M/s.Thribovan Enterprises Pvt. Ltd. by debiting their amount and giving credit to the Respondent RKKR Steels Ltd. in the books and accounts of the Applicant Corporate Debtor. 10. This Tribunal expresses its inability to appreciate 'the document in the form of a mere letter of request of transfer, for the adjustment of which, round seal in the name of the Corporate Debtor Surana Industries Limited is seen to have been affixed without mentioning the name of the signatory, the date and the authority to sign for closing a claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16-6-2018 Date of Liquidation order i.e. ending of CIRP process 12-10-2018 Exclusion period under the provision of 60(6) of the IBC, 2016 i.e. period between date of CIRP and last date for recovery application as per the Limitation Act 165 days Last date for the filing of recovery application after adjustment of exclusion period and the same shall be computed from the date of liquidation order. 25-3-2019 Date of filing of recovery application with Hon'ble NCLT vide Diary No. 96 of 2019 25-1-2019 13. The Learned Counsel for the Respondent has emphatically putforth an argument in relation to the interpretation of section 60(6) of IBC, 2016 and section 14(1) of the IBC, 2016 and for consideration of the same, the relevant portion are extracted hereunder: Section 14. Moratorium.-(1) Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely: - (a) the institution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation of limitation period by virtue of section 60(6) of the IBC, 2016 that too only with respect to the Respondent itself and the same cannot be made applicable to the third parties, or, as in the present case, the debtors of the Corporate Debtor. 15. However, we are unable to accept the submissions made by the Learned Counsel for the Respondent for the reason that after liquidation of the Corporate Debtor, the liquidator steps into the shoes of the Corporate Debtor and as per Regulation 39 of the IBBI (Liquidation Process) Regulation 2016, the liquidator is empowered to proceed to recover and realize the dues to the Corporate Debtor for maximization of value to the stakeholders, can initiate action for recovery of dues; 39. Recovery of monies due-The liquidator shall endeavour to recover and realize all assets of and dues to the Corporate Debtor in a time bound manner for maximization of value for the stakeholder 16. Further, the maxim 'reddendo singula singulis', or for that case any interpretation should be given to a sentence, only if the said sentence is vague and ambiguous and when the section is lucid and unambiguous then there is no need for any interpr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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