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TMI Blog2020 (10) TMI 1037X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appeal. We set aside the Order passed by the Adjudicating Authority in Paragraphs 13 and 14 of the Impugned Order imposing penalty of ₹ 1 Lakh on the Operational Creditor/Appellant. Rest of the Impugned Order of the Adjudicating Authority we maintain - Appeal allowed in part. - Company Appeal (AT) (Ins) No. 538 of 2020 - - - Dated:- 16-10-2020 - [Justice A.I.S. Cheema] Member (Judicial) And (Justice Anant Bijay Singh) Member (Judicial) For the Appellant : Shri Mohit K. Bafna and Shri Pulkit Tare, Advocates For the Respondent : Shri Mandeep Kalra and Shri Suresh Kumar, Advocates (R-1) JUDGEMENT ( Per - Justice A.I.S. Cheema ) The Appellant Operational Creditor filed Application under Section 9 of Insolvency and Bankruptcy Code, 2016 (IBC in short) before the Adjudicating Authority (National Company Law Tribunal, Ahmedabad Bench, Ahmedabad) in C.P. (I.B) No.204/NCLT/AHM/2019 against the Respondent Corporate Debtor. The Appellant claimed that it had supplied imported steam coal to the Respondent between 1st April, 2015 to 31st March, 2016 and delivered the same to the Respondent as per invoices. Amount of ₹ 14,09,449/- was due and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... states that the Respondent before the Adjudicating Authority claimed that it had made some payment to one Mr. Rajiv - the Agent of the Appellant, in cash. The learned Counsel referred to e-mail dated 22nd July, 2016 (Appeal Page 62) to say that the Corporate Debtor informed by this e-mail that the Operational Creditor should contact Mr. Rajiv as the payment has been released to him. It is argued that no such payments were released and the amounts were outstanding. It is argued that there is no proof regarding making of such payments. The Counsel for the Appellant referred to Annexure A/4 (Appeal Page 63) which is ledger account kept by Operational Creditor opened in the name of Corporate Debtor - Apna Paper Mills Pvt. Ltd. The Counsel referred to the figures in this account to show that the amounts stated therein were due and outstanding. It is argued that when the Corporate Debtor did not pay, the Operational Creditor s Representative had gone to the Corporate Debtor and the Official of the Corporate Debtor asked the Office to put an acknowledgement on the document and accordingly the amount was acknowledged. 7. It would be appropriate to photocopy the Annexure A/4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d start from 15 days after the last invoice which is stated to be of 28th December, 2015. The Section 9 Application was filed on 5th March, 2019 and thus, for saving a limitation which is of three years, the only document relevant is account ledger which is reproduced (supra). 9. With regard to such document, the Respondent appears to have filed Statement of Objections and Affidavit in Reply (Annexure A/8 Page 94) and pleaded as under:- 4. It is submitted that the alleged default has occurred on 12.01.2016 and the captioned proceedings have been filed after January 2019 which clearly show that the captioned Application is barred by law of limitation. I further strongly deny that the respondent has acknowledged and confirmed invoices and outstanding payment on 28.07.2016. It is stated that the signatures in the said confirmation does not belong to any of the authorized signatory of the respondent. It is further stated that the signatures does not belong to staff of the respondent herein. I state that the details of authorized signatory has been extracted from MCA website and only the following persons viz Ismail Yasinladu Qureshi, Farooq Haji Yasin Qureshi, Salim Yasin Qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received. Explanation.-For the purposes of this section,- (a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set off, or is addressed to a person other than a person entitled to the property or right, (b) the word signed means signed either personally or by an agent duly authorised in this behalf; and (c) an application for the execution of a decree or order shall no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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