9911796707
TMI Blog2020 (10) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... avan Road, Nr. Mahan Party Plot Cross Road, Bodakdev, Ahmedabad -380054 and is engaged in the business of Contract work of Electro-Mechanical and Instrumentation Projects and consultancy services. The company is also registered as a Small Enterprise under the Micro Small Medium Enterprises Development Act, 2006. 3. It is submitted that the Respondent Company, Jyoti Limited having its registered address at Nanubhai Amin Marg, Industrial Area, P.O. Chemical Industries, Vadodara - 390003 and is engaged in the business of manufacturing and marketing of electrical and hydraulic engineering equipment was incorporated on 01.01.1943 with Identification Number: L36990GJ1943PLC000363. The authorised Share Capital of the company is Rs. 25,00,00,000.00 and the paid up Share Capital is Rs. 23,09,26,280.00 4. It is submitted that the Corporate Debtor and Operational Creditor have had business relations since more than a decade. As a part of on-going business relation, Jyoti issued a Letter of Intent dated 25.08.2009. The contract with Jyoti was thus a back to back contract and the payments were to be released by Corporate Debtor to Operational Creditor in proportion to receipt of payment from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the Corporate Debtor made some payments to Operational Creditor pursuant to the bills raised. However, payments for some of the bills (O&M) raised were not cleared. Operational Creditor thus sent various reminders on phone, via emails, letters and have held various meetings regarding outstanding payments from Corporate Debtor to no avail. The Operational Creditor also issued some of the letters dated 18.12.2009, 28.12.2009, 27.01.2010, 22.02.2010, 09.03.2012, 14.12.2012, 20.12.2012, 28.02.2014, 28.02.2014 while raising the bills and requesting to clear the outstanding dues. 9. It is submitted that the Respondent failed and neglected to make payment of the admitted and undisputed Operational debt owed by the Respondent to the applicant, the Applicant delivered a demand notice dated 26.12.2018 to the Respondent under Section 8(1) of the Insolvency and Bankruptcy Code, 2016 demanding payment of Rs. 86,91,072.00. The notice was posted vide Registered Post Acknowledgment Due by the Operational Creditor on 26.12.2018 at the registered office of the Corporate Debtor. The Respondent replied to the said notice raising frivolous grounds vide reply dated 28.01.2019 and the Applicant r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el and its spares during the O&M period. The Corporate Debtor issued two purchase orders dated 16.11.2009. 12.4 It is submitted that the supply, installation and erection of the system was completed in August 2010. A certificate dated 22.11.2010 issued by the Corporate Debtor to the Operational Creditor is placed on record. 12.5 It is submitted that the AMC has replaced the Operational Creditor with one M/s. Nirman Engineering Services to undertake the operation and management services of Jashodanagar Water Pumping Station. Clause 5 of the contract stipulate as under:- "5. Penalty for breach of contract Delivery schedule is essence for the project contracts and shall be strictly adhered by you. If any penalty levied by Department on account of any delay in delivery of materials/non-completion of erection at site shall be charged to you as per tender condition on back to back basis." As AMC has deducted/levied amount of Liquidated Damages, the Operational Creditor is not entitled to maintain this petition. The Corporate Debtor therefore has not made payment to the Operational Creditor which is subject matter of the present petition. 12.6 It is submitted that the Operational Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod for filing a suit or application. As per Art. 137 of the Limitation Act, where there is no prescribed period of limitation then the period of limitation to file proceedings in 3 years from the date when the right to apply accrues. Section 18 and Article 137 of the Limitation Act, 1963 read as under: Section 18: Effect of acknowledgment in writing-(1) Where, before the expiration of the prescribed period for a suit of application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed 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 acknowledgment was so signed. Articles 137 of Part III- Other Application:- Any other application for which no period of limitation is provided elsewhere in this Division. Three years. -When the right to apply accrues. The Hon'ble Supreme Court in the case of Sampuran Singh & Ors. Vs. Niranjan Kaur (Smt.) & Ors., reported at (1999) 2 SCC 679 has held that the acknowledgement, if any, has to be prior to the expirat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.2019, 20.09.2019, 21.10.2019, 22.10.2019, 11.12.2019 & 17.12.2019. Arguments from both side were heard and concluded. 17. During the arguments, the Learned Counsel for the Operational Creditor has submitted that the Petition may be admitted and an Interim Resolution Professional appointed in accordance with the provisions of the Section 16 of the Insolvency and Bankruptcy Code, 2016. Further, it is submitted that the petition may be admitted for initiating Corporate Insolvency Resolution Process as per Section 9 of the Insolvency and Bankruptcy Code, 2016 and the moratorium period may also be declared. 18. Further, the Operational Creditor has not suggested any name of an Interim Resolution Professional ("IRP" for short). If, this I.B. Petition is admitted, an IRP needs to be appointed. Observations 19. The work order was issued on 17.07.2009. The supply installation and erection of the system was completed in August 2010. 20. Number of Correspondence has taken place between the Operational Creditor and Corporate Debtor relating to adjustments of payments with some other work. Ahmedabad Municipal of Corporation has replaced Operational Creditor and deducted/levied amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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