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TMI Blog2019 (10) TMI 1271X X X X Extracts X X X X X X X X Extracts X X X X ..... made, the e-mail ID contains particulars of the Corporate Debtor, hence, it cannot be said that e-mail has not been sent for and on behalf of the Corporate Debtor. Whether decision of the Hon ble Calcutta High Court in the case of Tata Steel Limited Versus Puja Ferro Alloys Limited' [ 2010 (9) TMI 1230 - CALCUTTA HIGH COURT ] relied on by the Corporate Debtor is applicable or not? - HELD THAT:- In view of the provisions of Section 238 and Section 3 (6) of IBC, 2016, we are of the considered view that Section 5 of the Information Technology Act, 2002 will not be applicable, hence, for this reason also the said decision cannot be said to be applicable here. Although Limitation Act, 1963 is applicable to the proceedings / appeals before the adjudicating authority but the provisions of Limitation Act have to be applied to the extent such provisions are consistent with IBC, 2016 because in Section 238 the words as far as may be have been used. This proposition of law is well settled by Catena of decisions. Thus, the said e-mail constitutes an acknowledgment of debt and limitation would be counted from this date. When it is so the petition is maintainable as debt is not barred by li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rew our attention to the page No. 8 of the reply of the Corporate Debtor wherein balance due as on 25th March, 2018, had been shown as NIL. She also drew our attention to the page No. 9 of the paper work to show that this statement was only for one day i.e. 25th March, 2018. She further drew our attention to the page No. 10 wherein the Operational Creditor had requested to provide the details of statutory auditors of the Corporate Debtor so that the clarification could be obtained regarding how the balance of outstanding could be NIL. 5. Ld. Counsel, appearing on behalf of the Corporate Debtor, submitted that there were circumstances of pre-existing dispute between the parties as regard to shortfall in the quantity of iron ore fines and transit losses, during the entire duration of services rendered by the Operational Creditor. There were quality issues as well. Substantial payments were already made and sum of ₹ 10,00,000/- was paid on 8th and 9th July, 2015 as full and final payment. It was also contended that bills for ₹ 10.50 crores and ₹ 10.17 crores had been paid and the outstanding balance amount was a false claim in view of the facts already stated. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort and not to the Financial Creditor. On perusal of the records, it is noted that the said e-mail is, in fact, has been addressed to mail ID i.e. [email protected] which is not of the Financial Creditor but statement of account of Financial Creditor has been attached. To express our view about the validity of such e-mail is an acknowledgment of that we consider it necessary to reproduce Section 18 of the Limitation Act, 1963 as under: Quote Section 18 (1): Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing singed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. Section 18 (2): Where the writing containing the acknowledgement is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (a of 1872), oral evidence of its contents shall not be received. Explanation: For th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed' relied on by the Corporate Debtor is applicable or not. It is most humbly noted that the petition was filed for recovery of the sum outstanding and in that background, it was held that having regard to the provisions of Sections 18 of the Limitation Act, 1963 and Section 5 of Information Technology act, 2000 that said electronic e-mail cannot be construed as acknowledgment of debt, hence, on the facts the said decision is not applicable to proceedings under IBC, 2016. Further, in view of the provisions of Section 238 and Section 3 (6) of IBC, 2016, we are of the considered view that Section 5 of the Information Technology Act, 2002 will not be applicable, hence, for this reason also the said decision cannot be said to be applicable here. Although Limitation Act, 1963 is applicable to the proceedings / appeals before the adjudicating authority but the provisions of Limitation Act have to be applied to the extent such provisions are consistent with IBC, 2016 because in Section 238 the words as far as may be have been used. This proposition of law is well settled by Catena of decisions. 11. Thus, taking into consideration above facts and legal position again we hold that said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial goods or services to the corporate debtor as may be specified shall not be terminated, suspended, or interrupted during moratoriul? period. vi. The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any Operational sector regulator. vii. The order of moratorium shall have effect from the date of admission till the completion of the corporate insolvency resolution process. viii. Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of corporate debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. ix. Necessary public announcement as per Section 15 of the IBC, 2016 may be made. x. Mr. Suvajit Saha, Registration No. IBBI/IPA-OOI/IP-PO 1699/2019-2020/ 12618, E-mail ID:suvaiitsaha [email protected]: Mob. No. 9836686442 is appointed as Interim Resolution Professional for ascertaining the particulars of creditors and convening a Committee of Creditors for evo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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