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TMI Blog2019 (12) TMI 1358X X X X Extracts X X X X X X X X Extracts X X X X ..... It is averred that the Corporate Debtor, raised Purchase order No. HINFRA:13- 14/1011/R.EXTRACTOR/SKS/029 dated 19.08.2013 on the operational creditor for erection and commissioning of roof extractor units of its model STV-1000. Copy of the said purchase order was annexed to the petition as Annexure-A. b) It is averred that on 10.03.2014 a completion report of the services provided to the satisfaction of corporate debtor was duly submitted by the operational creditor, which was been signed by both i.e the operational creditor and corporate debtor. The Operational creditor raised the invoices for Rs. 1,92,135/- for the services provided to the corporate debtor on 13.03.2014. Copy of the invoice raised by operational creditor is annexed here with as Annexure-B. c) It is averred that various emails were sent to the corporate debtor from April 2014 to July 2016. Despite regular follow up, the corporate debtor has failed to make payment of the outstanding amount, which is evident from certificate issued by banker of the operational creditor. d) It is averred that the corporate debtor is liable to pay interest @ 24% p.a on the outstanding amount with effect from expiry of 15 days f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce filed at Page No. 32 which is shown as Annexure B of the company petition. The alleged invoice alleged to be outstanding which is pertaining to the year 2014 and dated 13-3-2014. Further, the Purchase Order filed at Page No. 31 as Annexure A of the company petition and Ledger Account Note filed at Page No. 33 as Annexure C also depict the years 2013 and 2014 respectively. d. It is averred, the Hon'ble Supreme Court in BK Educational Services Private Limited Vs.Parag Gupta and Associates, had clearly held that "an application filed after the IBC came into force in 2016 cannot revive a debt which is no longer due as it is time-barred. The expression "debt due" in the definition sections of IBC mean debts that are "due and payable" in law, i.e., the debts that are not time-barred. Since the Limitation Act is applicable to applications filed under sections 7 and 9 of the IBC from inception, article 137 of the Limitation Act is invoked, which provides the period of limitation in case of "any other application for which no period of limitation is provided elsewhere" as three years from the time when the right to apply accrues. "The right to sue", therefore, accrues when a defa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be held liable for. i. Based on these facts the present petition is barred by limitation, devoid of merits, not maintainable, cannot be accepted and should be dismissed with costs. 4. Rejoinder filed by the operational creditor in brief: a. It is averred that corporate debtor emphatically denied that the petition is barred by limitation. It is averred that the corporate debtor in his reply dated 05.04.2019 for the demand notice served stated that the amount of debt mentioned in the notice is not being paid only for the reason that complete set of documents have not been annexed with the notice. It shows the corporate debtor admitted the debt vide reply and thus the limitation would not be applicable. b. It is averred that the IBC came into existence on 01.12.2016 and the notice was served on 27.03.2019 and the present application has been filed on 07.06.2019 which is not filed beyond limitation. c. It is averred that the present application is filed within three years form 01.12.2016, the same has been filed within limitation prescribed under Article 137 of the Limitation Act.Meanwhile there are numerous meetings and emails exchanged between operational creditor and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to avoid making the payment of debt which was already confirmed. 9. The learned counsel for corporate debtor on the other hand submits that the alleged claim is in relation to the invoice dated 13.03.2014 issued against purchase order dated 19.08.2013.It is contended by him that the operational creditor himself admitted that the date of default occurred for the present proceedings is 28.03.2014 and the present company petition has been filed after lapse of 5 years. Therefore the same is barred by limitation. 10. It is further contended by the corporate debtor that in terms of Hon'ble Supreme Court Order in the matter of B.K.Educational Services Private Limited and Parag Gupta& Associates the application filed under IBC which came into force in 2016 cannot revive a debt which is no longer due as it is time barred. It is his contention that in the present case "the right to sue" has accrued from the date of default i.e 28.03.2014 and the present application is beyond the limitation period of three years. 11. We have heard the counsels for both the parties, and perused the petition and other documents filed by both of them. It is undisputed fact that the operational creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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