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TMI Blog2020 (9) TMI 1075X X X X Extracts X X X X X X X X Extracts X X X X ..... and October 01, 2018 authorizing Shri Rajiv Goyal, Chief Financial Officer of ISMT Limited to nominate and issue necessary power of attorney to officials of ISMT Limited is at page 27 and 28 of the petition. The Power of Attorney dated 01.06.2017 of Shri Rajiv Goyal of ISMT Limited authorizing Shri S.S. Puri, holding designation of Assistant Vice President-Legal as Attorney of ISMT Limited is at Page 28-A of the petition. 2. The master data of HIM Teknoforge Limited is at Annexure A of the petition. The registered address shown therein his Village Billanwali Baddi, HP-173205. Therefore, the jurisdiction lies with this Bench of the Tribunal. 3. In Part IV Column I of Form No. 5, it is stated that the total principal amount of debt due from HIM Teknoforge Limited is Rs. 83,12,760.91 and the date is given as 12.08.2002 to 13.06.2018. It is further stated that the interest amount of Rs. 1,44,90,167/- @ 11% since August 2002 alongwith costs of Rs. 1,68,068/- is all payable by HIM Teknoforge Limited on account of default in payment of unpaid invoices. The total is stated to aggregate to Rs. 2,29,70,996 and details as per Annexure G are stated to be a judgment and decree dated 03.05.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 136 of the Limitation Act and not under Article 137 and that Article 136 prescribes the limitation period of 12 years for the execution of any decree (other than a decree granting mandatory injunction) or any order of a Civil Court and the present petition is admittedly on the basis of an order and decree of the Civil Court dated 03.05.2012 and therefore, the present petition is well within the limitation period. It is submitted that after the demand notice was issued on 14.06.2018, HIM Teknoforge Limited issued a cheque for part payment of Rs. 7,31,813 in favour of "Indian Seamless Steels & Alloys Ltd." on 26.06.2018 and this proved the acceptance and acknowledgment of debt by the respondent and thus, the present claim filed by the petitioner is well within limitation. 7. On 29.11.2019, order was issued as follows:- "It is not disputed before us that the judgement and decree is in the name of 'Indian Seamless Steels and Alloys Ltd.' which is not petitioner before us. The petitioner before us is the company named as 'ISMT Ltd.'. The former company namely 'Indian Seamless Steels and Alloys Ltd.' changed its name to 'ISMT Ltd.' which was not effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of India Notification No. GSR507E dated 24.06.1985. It is submitted that the operational creditor has not yet filed any execution proceedings in respect of the decree in question and it has been inadvertently mentioned that the operational creditor has withdrawn the application for execution of decree vide order dated 07.11.2019. It is argued that the filing of execution proceedings is a separate legal remedy independent of NCLT proceedings. It is reiterated that the present petition is not time barred as it is admittedly on the basis of an order and decree of the Civil Court dated 03.05.2012, therefore, the present petition is well within the limitation period. 10. The learned senior counsel for HIM Teknoforge Limited has relied on the reply filed in respect of the petition and has pleaded that in view of the submissions made therein, the application was barred by limitation and moreover, qua Indian Seamless and the products supplied by them, there were disputes, both on account of the quality of the products delivered and on account of the quantum of debt claimed. It is, therefore, pleaded that the application be dismissed. 11. We have carefully heard and considered the argum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian Seamless to ISMT Limited. 14. It has been pleaded by the ISMT Limited that the present petition is filed on the basis of the judgment and decree dated 03.05.2012 as decree holder is also recognized as a "creditor" under Section 3(10) of the Code. Section 3(10) of the Code reads as under:- "3. In this Code, unless the context otherwise requires,- (10) "creditor" means any person to whom a debt is owed and includes a financial creditor, an operational creditor, a secured creditor, an unsecured creditor and a decree holder;" 15. The present application is filed under Section 9 of the Code. The application under Section 9 can only be filed by an operational creditor. Operational Creditor is defined in Section 5(20) and operational debt is defined in Section 5(21) of the Code. Both the provisions are as under:- "(20) "operational creditor" means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred; (21) "operational debt" means a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues arising under any law for the time being in force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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." 18. In the list of dates and events (Page 10 of the petition), it is stated that during the period 19.09.1998 to 14.09.2000, as per the terms of purchase order, the applicant supplied the goods to the corporate debtor and against the goods supplied operational creditor has issued various invoices to the corporate debtor, which failed to pay the amount as claimed in the invoices and that on 12.08.2002, the operational creditor filed a civil suit for recovery under Order XXXVII of CPC for recovery of an amount of Rs. 83,12,760.91 alongwith interest and costs from the corporate debtor. The above facts clearly shows that default occurred over three years prior to the date of filing of the application and therefore, the application would be barred under Article 137 of the Limitation Act. 19. ISMT Limited has submitted that the its debts fall under Article 136 of the Limitation Act which prescribes the period of 12 years for the execution of any decree (other than a decree granting mandato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition is not filed within the limitation period is accepted. 23. Without prejudice to the above finding, the contention of HIM Teknoforge Limited that qua Indian Seamless and the products supplied by them, there were disputes both on account of the quality of the products delivered and on account of the quantum of debt claimed are being examined. 24. In Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited, (2017) 140 CLA 123 (SC), Civil Appeal No. 9405 of 2017 the Hon'ble Supreme Court has held in Para No. 40 thereof as under:- "40. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt schedule by 15th April, 2001 after assesing the exact position." 27. In the reply, HIM Teknoforge Limited has submitted that as per the letter dated 05.03.2001, Indian Seamless were informed that the respondent will send them payment schedule after assessing the exact amount outstanding and that HIM Teknoforge Limited never admitted to any amounts payable in the aforesaid letter. HIM Teknoforge Limited have referred to notices for payment dated 27.06.2001, 24.07.2001 and 17.08.2001 received from the applicants. It is stated by HIM Teknoforge Limited that replies were sent to all the notices emphatically denying the claim of Rs. 84,00,000/- made by Indian Seamless as the same was highly inflated, exaggerated and wrong. Reference has been made to the letter dated 9.8.2001 of HIM Teknoforge Limited (Annexure R-6 Colly of the reply) in which it was stated that due to defective raw material supplied by the applicants, the components manufactured by HIM Teknoforge Limited were rejected and returned by the customers which resulted in huge financial loss to HIM Teknoforge Limited and also affected their goodwill adversely and that there are also certain debit notices on account of exce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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