9911796707
TMI Blog2020 (10) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2010 (page no. 115 to 124 of the application) the Operational Creditor had supplied the Corporate Debtor solar water heater equipment by invoices dated 18.08.2010 to 15.10.2010 (page 123 to 163 of the application). As the Corporate Debtor did not pay the amount, notice dated 21.09.2011 under Section 434 of the Companies Act, 1956 was served on the Corporate Debtor. The Operational Creditor filed winding up proceeding against the Corporate Debtor before Hon'ble Karnataka High Court bearing CP No. 225 of 2011. On 24.07.2011, Hon'ble Karnataka High Court passed order of winding up of the Corporate Debtor. However, again on 04.09.2015, Hon'ble Karnataka High Court held that it has no territorial jurisdiction of passing order of winding up of the Corporate Debtor and thereby dismissed the Petition with liberty to the Operational Creditor to file such Petition before the High Court having jurisdiction. Accordingly, in the year 2016 the Operational Creditor filed winding up Petition against the Corporate Debtor afresh before Hon'ble Calcutta High Court which is still pending. 2.2. It is also not in dispute that the Operational Creditor has filed number of criminal proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Operational Creditor was towards full and final settlement and now no debt is due and payable. No (ii) Whether there exist dispute about the debt. No (iii)Whether the debt is time barred. No Reasons for above findings 4.1. It is contention of the Corporate Debtor that on 17.12.2015 they gave the Operational Creditor demand draft of Rs. 2,11,575/-(Rupees Two Lakh Eleven Thousand Five Hundred and Seventy Five Only) towards full and final settlement. It is not in dispute that the Operational Creditor received that demand draft but question is whether it was towards full and final settlement? It is not in dispute that the said demand draft was handed over by the Corporate Debtor as per settlement arrived in between them in Hon'ble Lok Adalat pertaining to CC No. 3389/2011. The Corporate Debtor produced on record copy of settlement precipice (page no. 206 of the affidavit in reply). We have perused that precipice. It has been clearly mentioned therein that, "complainant has agreed to received the sum as full and final settlement in the above said case. This clears doubt that said sum of money was paid to the Operational Creditor as a settlement amount relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Creditor's Petition on the ground of territorial jurisdiction. On 17.12.2015, the Corporate Debtor paid the Operational Creditor sum of Rs. 2,11,575/- (Rupees Two Lakh Eleven Thousand Five Hundred and Seventy-Five Only) by way of Demand Draft. This application is filed in the year 2019. If all facts are taken into consideration, they show that it is a time barred debt. As against this, Ld. Counsel for the Operational Creditor submitted that the Operational Creditor had approached the then proper forum for recovery of its debt immediately upon the debt became due and payable by the Corporate Debtor. It was latter on found that Hon'ble Karnataka High Court does not have territorial jurisdiction. It was wrong forum as far as territorial jurisdiction is concerned. But that application of the Operational Creditor against the Corporate Debtor was bona fide proceeding to recover the debt. In the year 2015, Hon'ble Karnataka High Court granted liberty to the Operational Creditor to move before Hon'ble Calcutta High Court. Accordingly, in the year 2016, the Operational Creditor approached Hon'ble Calcutta High Court. While counting period of limitation, the Operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which a litigant brings his application in the court, that is, a court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or (sic of) law or defect of procedure. Having regard to the intention of the legislature this Court is of the firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded." Coming back to factual aspect of this case, we find that Operational Creditor immediately upon the debt become due and payable, had filed winding up proceeding before Hon'ble High Court. It was a proper forum but having no territorial jurisdiction. Later on, Hon'ble Karnataka High Court dismissed the Petition granting liberty to the Operational Creditor to file such Petition before Court/Forum. In view of above facts, we hold that as soon as Operational Creditor filed a proceeding of recovery of operational debt against the Corporate Debtor before the then available Forum, the time stop running against the Operational Creditor for purpose of filing the proceeding relating to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Operational Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. v) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated, suspended, or interrupted during moratorium 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) Pankaj Kumar Tibrewal h ..... 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