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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 ..... on 13.03.2014 and the present proceedings have been initiated by way of the statutory demand notice only on 27.03.2019. Petition dismissed. - CP(IB) No. 383/9/HDB/2019 - - - Dated:- 5-12-2019 - Ratakonda Murali , Member ( J ) And Narender Kumar Bhola , Member ( T ) For the Appellant : Ravi Chandhok, Advocate For the Respondents : N. Lakshmidhar and G. Bhupesh, Advocates ORDER 1. This petition is filed by SK Systems Private Limited which is the Operational Creditor, stating that M/s. Hamtek Infra Projects Private Limited, the Corporate Debtor herein had defaulted in repaying a sum of ₹ 4,22,697/-. Hence this petition is filed under Section 9 of Insolvency and Bankruptcy Code, 2016, R/w Rule 6 of Insolvency Bankruptcy (Application to the Adjudicating Authority) Rules, 2016, seeking admission of the Petition, initiation of Corporate Insolvency Resolution Process, granting moratorium and appointment of Interim Resolution Professional as prescribed under the Code and Rules thereon. 2. The brief averments made in the petition are as follows: a) It is averred that the Corporate Debtor, raised Purchase order No. HINFRA:13- 14/1011/R.EXTRACTOR/SKS/02 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perational creditor and acknowledged by the corporate debtor. Accordingly, the contention of the corporate debtor with respect to the documents and the report is not sustainable. Thus the operational creditor filed an application to initiate CIRP in respect of corporate debtor under the I B Code, 2016. 3. Reply/counter filed by the corporate debtor: a. Corporate debtor denied the allegations made by the applicant. He avers that the application filed by the operational creditor is devoid of merits, not maintainable and barred by the limitation. b. It is averred that the case of the operational creditor that it had done services of erection and commissioning of roof extractor units of model STV-1000 and that principal amount of ₹ 1,92,135/- and interest amount of ₹ 2,30,562/- totalling to an amount of ₹ 4,22,697/- is payable. It is averred that there is no amount due as mentioned in the petition and as such the Corporate Debtor Company has not agreed to pay any amount as mentioned in present petition. c. It is averred that the operational creditor is placing reliance on the invoice filed at Page No. 32 which is shown as Annexure B of the company petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove that the Operational Creditor had done only Erection of the Roof Extractor. But, under the same invoice, the Operational Creditor is claiming the entire amount under the Work Order, while Commissioning work is due to be executed by it. Further, the Ledger Note filed by the Operational Creditor at Page No. 33 of the company petition also evidences that the Operational Creditor is claiming the entire amount of Work Order for only Erection of Roof Extractor Unit. g. It is further averred that till date, the Operational Creditor had not commissioned the Roof Extractor. While so, the intention of the Operational Creditor in claiming the entire amount under the Work Order while part work was not executed, is not justified. h. It is further averred that as per the books of account of the Corporate Debtor, no invoice is accounted nor Service Tax credit is taken and no TDS has been done. Further, due to non-completion of the work by the Operational Creditor, the Corporate Debtor which was executing project for Coal Handling System/Plant for a SEZ Unit, had incurred huge losses to which the Operational Creditor is to be held liable for. i. Based on these facts the present petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is the contention of the learned counsel for operational creditor that in fact the notice along with all the annexures was served on the corporate debtor. He avers that the corporate debtor admitted the debt vide reply dated 05.04.2019 and the limitation accrues from the said date i.e 05.04.2019. 7. He further submits that Article 137 of the Limitation Act, 1963 prescribes limitation for filing the application, which is three years from the date, when right to apply accrues and in this case as the IBC came into existence on 01.06.2016, therefore the right to apply accrued to the operational creditor under Section 9 of the I B Code. Counsel contended that the application has been filed within the prescribed time limitation of three years. 8. It is the case of the learned counsel for operational creditor that he relied upon the decision of Supreme Court in the matter of B.K.Educational Services Private Limited and Parag Gupta Associates. Learned counsel for operational creditor further submits that the corporate debtor vide its email dated 04.04.2014 agreed to make payment of outstanding operational debt and he is trying to avoid making the payment of debt which was alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2014 and there is no pursuance of the said liability by operational creditor against the corporate debtor till the issuance of demand notice dated 27.03.2019. Thus there is huge gap of more than five years in between the two dates which is unexplained. 16. In this connection Hon'ble NCLAT while making reference to the decision of Hon'ble Supreme Court in the matter of B.K.Educational Services Pvt Ltd vs. Parag Gupta and Associates 2018, and deciding the Company Appeal (AT) (Insolvency) No. 672 of 2019 has observed that with respect to the applications filed Under Section 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation of Act gets attracted. The right to sue , therefore, accrues when a default occurs. It is further observed for the default occurred over three years prior to the date of filing the application, the application would be barred under Article 137 of the Limitation Act. 17. Since the Limitation Act is applicable to applications filed under Section 7 9 of I B Code, Article 137 of the Limitation Act is invoked. The said Article provides the period of Limitation as in case of any other application for which no period of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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