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TMI Blog2020 (10) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation. The proceeding of winding up filed against the Corporate Debtor is still pending. It was filed within period of limitation. In view of above facts, this application is not barred by limitation. In this case, it is not in dispute that the Corporate Debtor has committed default in paying the operational debt. Before filing this application, the Operational Creditor has served notice under Section 8 IBC to the Corporate Debtor. Operational Creditor has filed on record affidavit complying provisions of Section 9(3)(b) and 9(3)(c) of IBC - application admitted - moratorium declared. - CP (IB) No. 1106/KB/2019 - - - Dated:- 16-3-2020 - M. B. Gosavi, Member ( J ) And Virendra Kumar Gupta , Member ( T ) For the Appellant : A. K. Shrivastava, Akash Sharma, Rishav Banerjee For the Respondent : Aishwarya Awasthi and Rajarshi Banerjee, Advocates ORDER M. B. Gosavi , Member ( J ) 1. M/s. Nuetech Solar Systems Pvt. Ltd., the Operational Creditor filed this application under Section 9 of Insolvency and Bankruptcy Code, 2016 against M/s. Environ Energy Corporation India Private Limited (Corporate Debtor) to start Corporate Insolvency Resolution Process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, the Operational Creditor served the Corporate Debtor demand notice dated 12.04.2019 (page no. 191 of the application). According to the Operational Creditor, in spite of receipt of demand notice the Corporate Debtor did not pay the debt, hence this application is filed to start CIRP of the Corporate Debtor. 3. Notice of this application is duly served to the Corporate Debtor. It appeared through one of its Senior Executive Legal and Industrial Relations Mr. Sukalyan Bhowmick. He filed affidavit in reply. We have gone though the contents of the affidavit-in-reply. It appears that the Corporate Debtor raised three defenses to contest this application: - (i) It has paid sum of ₹ 2,11/575/- (Rupees Two Lakh Eleven Thousand Five Hundred and Seventy Five Only) by demand draft no. 00251 dated 17.12.2015 towards full and final settlement and now nothing is due and payable to the Operational Creditor. (ii) There is a dispute pending in form of winding up petition before Hon'ble Calcutta High Court about the operational debt. Hence, this application is not maintainable. (iii) It is time barred claim filed by the Operational Creditor. 4. We heard Ld. Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount by the Operational Creditor. It refers dispute as the winding up proceeding filed by the Operational Creditor against it is still pending. We hold that, such cannot be pre-existing dispute relating to operational debt. Winding up Petition filed on the ground that Corporate Debtor was unable to pay the debt. This proceeding is also filed because the Corporate Debtor committed default in paying the debt. Both the proceedings are similar in nature. Rather winding up of the corporate debtor will be end result if its insolvency cannot be resolved by way of this proceeding. On facts, we hold that there is no pre-existing dispute. We answer point no. (ii) in negative. 4.3. It is not in dispute that the debt in this case became due in the year 2010-2011. Immediately thereafter the Operational Creditor filed winding up proceeding against the Corporate Debtor before Hon'ble Karnataka High Court. It was pending till 2015. In the year 2015, Hon'ble Karnataka High Court held that it does not have territorial jurisdiction to entertain Petition under Section 434 of the Companies Act 1956 against the Corporate Debtor because the registered office of the Corporate Debtor was then s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Ld. Counsels. At the outset, we make it clear that Section 14(2) of Law of Limitation saves period of limitation, if any application of civil nature is being filed in wrong Court with bona fide assumption that the Court having jurisdiction. In case of M/s. M.P. Steel Corporation Vs. Commissioner of Central Excise { (2015) 7 Supreme Court Cases 58}, Hon'ble Apex Court explains applicability of Section 14 of Law of Limitation in following words: - The policy of the section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance and the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) and 9(3)(c) of IBC. It has not proposed name of resolution professional for appointment as Interim Resolution Professional (in short IRP ) and left the matter at the discretion of this Authority. In short, application is defect free. Hence, we admit the Corporate Debtor in CIRP by following orders. ORDER i) The application filed by the Operational Creditor under section 9 of the Insolvency Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, M/s. Environ Energy Corporation India Private Limited is hereby admitted. ii) We declare a moratorium and public announcement in accordance with Sections 13 and 15 of the IBC, 2016. iii) Moratorium is declared for the purposes referred to in Section 14 of the Insolvency Bankruptcy Code, 2016. The IRP shall cause a public announcement of the initiation of Corporate Insolvency Resolution Process and call for the submission of claims under Section 15. The public announcement referred to in clause (b) of sub-section (1) of Section 15 of Insolvency Bankruptcy Code, 2016 shall be made immediately. iv) Moratorium under Section 14 of the Insolvency . Bankruptcy Code, 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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