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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 ..... e 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 Rs. 14,09,449/- was due and outstanding from the Corporate Debtor which amount included interest as on 15th March, 2018. The Appellant claimed that as the operational debt was outstanding and not paid, the Application under Section 9 of Insolvency and Bankruptcy Code, 2016 (IBC - in short) deserves to be admitted. The Appellant claims that before filing Application under Section 9 on 5th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 65 of IBC and observed that the Operational Creditor had misused the I&B Code and imposed a penalty of Rs. 1 Lakh on the Appellant - Operational Creditor. The Application thus came to be dismissed. 5. The Operational Creditor thus filed this Appeal and has raised issues with regard to the Impugned Order. 6. The learned Counsel for the Appellant states that the Corporate Debtor did not dispute that the coal was supplied and that there was no dispute raised with regard to the quality of the coal. The learned Counsel 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is submitted that as per the terms, the amount is to be paid after Fifteen (15) days from the date of respective invoice. It is submitted that the last date of invoice is 28-12-2015. It is submitted that the Respondent Company has acknowledged its liability on 28-07-2016. It is submitted that one Shri Dipen Mukharjee, an employee and representative of the Applicant went to the Office of the Respondent Company at Vapi. The said Representative met Mr. Faruk Qureshi. He gave instruction to his Office to acknowledge the outstanding and the same was done. It is submitted that the period of limitation would start from 28-07-2016 and the present Petition is filed on 05-03-2019. It is respectfully submitted that the present Petition is within the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requests by telephonic calls and personal visits and the Applicant was assured that the outstanding invoices shall be paid immediately. It is respectfully submitted that the Respondent has acknowledged and confirmed the invoices and outstanding payment on 28-07-2016." 12. Thus, only statement made was that the Respondent had acknowledged on 28.07.2016 without any particulars. The Respondent in Affidavit in Reply as per Annexure - A/8 seriously disputed the execution of this document as regards the Part which is claimed by the Appellant to be acknowledgement. It is only a signature with rubber stamp and below the signature (not above), there is an endorsement "ok 28.07.2016". 13. Section 18 of the Limitation Act, 1963 reads as under:- " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scious acknowledgement of the debt. There could be refusal to pay but it should show that there has been an acknowledgement of the debt outstanding. In the present matter, the endorsement concerned is seriously disputed and even if we are to accept the case of the appellant [portion of which argument we have reproduced (supra)], what it states is that Mr. Dipen Mukharjee - employee and Representative of the Appellant went to the Office of Respondent and met Mr. Faruk Qureshi and the said Faruk Qureshi gave instructions to his Office to acknowledge the outstanding and the same was done. Thus, even the Appellant is not claiming that Mr. Faruk Qureshi signed it. Who signed, nothing is clear. In the facts of the matter, the contention of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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