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TMI Blog2020 (5) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... ation merely on non-filing of memorandum of appearance in accordance with rule 45 of the NCLT Rules, 2016 would hamper justice, in view of the fact that the substantive content of the pre scribed form has been complied with. Hence, the objection of the corporate debtor, in this regard, warrants no further consideration. While the date of the credit note falls within prescribed period for the purposes of limitation, there is no admission of liability or statement or implication of intention to pay. Thus, a fresh period of limitation cannot start from the date of the credit note. Under the circumstances, the filing of the application on January 7, 2019 beyond the period of three years as per article 137 of the Limitation Act, 1963 against the date of default on August 28, 2015 is not maintainable and cannot be sustained. The application is barred by limitation and is dismissed. - Company Petition No. (IB)-08/9/JPR/2019. - - - Dated:- 30-1-2020 - P. S. N. Prasad Judicial Member And Raghu Nayyar Technical Member For the Applicant : Sandeep Kumar Jain , Company Secretary For the Respondent : Naresh Kumar Sejvani ORDER RAGHU NAYYAR (TECHNICAL MEMBER). - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant had issued legal notice dated July 25, 2016 demanding outstanding amount of ₹ 7,64,539 and interest at 18 per cent. per annum. It is also stated by the applicant that there was claimed to have been an issue between the parties with respect to 10 pieces of damaged glasses and the dispute was claimed to have been settled on April 1, 2017 when the applicant has allowed discount of ₹ 1,86,402 via., credit note dated April 1, 2017 signed by authorised signatory of both the parties. Copy of credit note acknowledged by the corporate debtor is attached as annexure IV of the additional documents vide Dairy No. 1929 of 2019. It is seen that a copy of the said credit note was not filed in the initial application/petition. 5. The applicant had issued demand notice under section 8 of the Insolvency and Bankruptcy Code, 2016 for an amount of ₹ 9,27,645 including interest at 24 per cent. per annum dated March 13, 2018 on the corporate debtor, which was duly received by the corporate debtor through post on December 5, 2018. Copy of tracking report as proof of service of said section 8 notice is annexed with the application. 6. It is submitted that the corporate deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27-07-2015 4428 99,580 99,580 27-08-2015 0 30-07-2015 4574 15,151 15,151 10-09-2015 0 13-08-2015 5141 3,28,948 3,28,948 20-08-2015 1,475 3,18,386 13-08-2015 5142 41,835 41,835 16-09-2015 0 19-08-2015 5301 4,790 4,790 21-09-2015 0 21-08-2015 5405 6,033 6,032 26-08-2015 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is also submitted that the board resolution filed by the applicant is invalid and inappropriate as it is not in conformity with the provisions of section 158 of the Companies Act, 2013 which mandates the director to indicate his DIN where his reference is made. It is also submitted that the authorisation to act as attorney is through power of attorney and not in accordance with rule 45 of the National Company Law Tribunal Rules, 2016 and also not in Form No. 12. 10. The corporate debtor further submitted that the essence of filing of an application under the IBC, 2016, is basically to establish the situation of the corporate debtor of inability to pay off its debts. In the present case, the applicant nowhere proves the existence of legal liability or default or the inability of the corporate debtor to pay the same and therefore provisions of section 65 should be invoked and costs should be imposed on the applicant. It is also submitted that, out of 7 invoices alleged to be due in the application by the applicant to be outstanding, 4 invoices were already paid in 2015. 11. On perusal of all the files and hearing both the parties, it is noticed that the dispute prior to fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant/operational creditor that the computation sheet presented with the application was worked out on outstanding bills accounting on FIFO basis. The revised computation sheet was prepared by adjusting receipts on bill to bill basis. On bare reading of the revised tabular computation of outstanding and settled invoices and computation of amount, it is noted that the invoice amount raised has been mostly paid by the respondent on one to one basis. While there were continuing transactions between the parties since 2013 to July-August, 2015 the aspect of three invoices, bearing numbers 3902, 3910 and 5141 remained contentious and the last invoice is dated August 21, 2015 which should have been paid in seven days. Thus, the date of default would be August 28, 2015. It is the assertion of the operational creditor/applicant that the issue of disputed invoices was settled by a credit note dated April 1, 2017 signed by both the parties and thus a fresh period of limitation is to be computed therefrom. However, this is a tenuous argument as the said credit note does not carry any acknowledgment of liability in respect of prior period billing. It is only in the nature of a document counter si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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