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TMI Blog2018 (5) TMI 1992X X X X Extracts X X X X X X X X Extracts X X X X ..... Creditor had received reply to his demand notice, wherein the Corporate Debtor has raised the issue about the supply of sub-standard quality of materials - the dispute is already raised before initiation of this proceeding and hence we are not inclined to admit the petition. Both the points answered in negative - application rejected. - Company Petition No. 159/KB/2018 - - - Dated:- 11-5-2018 - Jinan K.R. And M.B. Gosavi, Judicial Member Akhilesh Kumar, Shrivastava, Adv. and Akash Sharma, Pr. CS for the Appellant. Soumabho Ghose, Adv. and Shounak Mitra, Adv. for the Respondent. ORDER Madan B. Gosavi, M/s. Prowess International Pvt. Ltd., the Operational Creditor filed this petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the I B Code) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 to start Insolvency Resolution Process against M/s. Shyam Steel Industries Ltd., the Corporate Debtor because of the Corporate Debtor's inability to pay its dues to the extent of a sum of ₹ 44,73,178.00 towards supply of various kinds of goods and services a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (ii) whether the claim of recovery of debt being already denied, this petition under section 9 of l B Code, is Maintainable? - No Reasons: (i) and (ii): The following points are not in dispute. The Operational Creditor had supplied various equipments to the Corporate Debtors in between 2009 to 2012. An amount of ₹ 44,73,178/- was due and payable by the Corporate Debtor to the Operational Creditor. As the Corporate Debtor did not clear the outstanding despite repeated demands, the operational creditor filed a Company Petition bearing no.668 of 2016 in the High Court at Calcutta under section 430(e) of the Companies Act, 1956 for winding up of the Corporate Debtor company because it was unable to pay the dues. That matter was contested by both the parties herein. The Hon'ble High Court dismissed that petition holding that, If a triable issue is raised the company cannot be directed to be wound up. The company should have a fair chance to defend its claim. The petitioner has clearly stated in paragraph 10 of the petition that last payment was received on 11th May, 2012 and thereafter there was no acknowledgement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we adjudicate the same hereunder. 10. Ld. Counsel appearing for the Operational Creditor argued before us that whether debt is time-barred or not was not the issue before the Hon'ble High Court. It is still open for this Tribunal to consider the same. While making his submissions on the fact, the Ld. Counsel brought to our notice the Master Data of the Corporate Debtor and submitted that the Corporate Debtor has shown in its balance-sheet, book debt of ₹ 3 crores. It is nothing but admission of the debt. To substantiate his argument, he brought to our notice entry no.vii in Part I of Schedule 3 of Companies Act, 2013, wherein instructions were issued to prepare and maintain the balance-sheet. He submitted that entry of debt shown by the Corporate Debtor in its balance-sheet has to be held as admission of the debt. He further submitted that liability to pay amount ceases to exist only for reason of operation of law or debtor declines his intention to honour the liability. Ld. Counsel relied on ruling CIT v. Sugauli Sugar Works (P.) Ltd. [1999] 2 SCC 355 and in case of the CIT v. Vardhman Overseas Ltd. 2011 SCC Online Delhi 5599. 11. Ld. Counsel further submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court did not set aside this observation of NCLAT and hence as on today the situation is that the provisions of law of limitation are not applicable to the insolvency proceedings. He also brought to our notice that the report of Insolvency Law Committee about the application of Limitation Act, 1963. 15. It appears to us that in case before NCLAT (Neelkanth Township Construction (P.) Ltd.) (supra), the time was held to be running because in agreement clause of interest to be charged against original sum was pressed in service. These facts are not involved in this case. Rather, they are not pressed in service at least before us. Moreover, the Hon'ble Supreme Court in the case of Neelkanth Townships Construction (P.) Ltd. v. Urban Infrastructure Trustees Ltd. [2018] 92 taxmann.com 177 (SC), wherein the question of the applicability of the Limitation Act, 1963 to the Insolvency Bankruptcy Code, 2016 was kept open, while the appeal was dismissed. Therefore, in our considered opinion in relation to aspect of limitation, it is left open for consideration. In our considered opinion, provisions of law of limitation may not be applicable to proceedings before Insolvency Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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