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TMI Blog2019 (12) TMI 1399X X X X Extracts X X X X X X X X Extracts X X X X ..... s been made by the Corporate Debtor or that any payment has been received within the period of limitation, in which case the applicability of section 18 or section 19 of the Limitation Act, 1963, may have a bearing. Since the petition itself is outside the period of limitation, we refrain from going into the merits of the matter at this stage - application rejected. - CP (IB) 824/MB/C.IV/2019 - - - Dated:- 17-12-2019 - Rajasekhar V.K., Member (J) And Ravikumar Duraisamy, Member (T) For the Appellant : Rajesh Dharap, Advocate For the Respondents : B.S. Mahajani, Advocate ORDER Rajasekhar V.K., Member (J) 1. This is a Company Petition filed under section 9 of the Insolvency Bankruptcy Code, 2016 (IBC) by Moditec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This led to some business relations between the Operational Creditor and the Corporate Debtor; (c) As relations progressed, the Corporate Debtor requested the Operational Creditor to assist by making certain payments for the tender process to supply goods to the Himachal Pradesh State Electronics Development Corporation Limited (HPSEDC) by the Operational Creditor. The Demand Draft for such payment on behalf of the Corporate Debtor was taken from the account of the Operational Creditor to pay to HPSEDC; (d) Further, while completing the tender process for HPSEDC, the supply of goods was made through the Operational Creditor. Due to delay on the part of the Corporate Debtor, the authorities penalised the Operational Creditor. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.07.2019, the Corporate Debtor has inter alia set up the following defence: - (a) The Operational Creditor has not disclosed the period of the so-called claim, and whether it has ever demanded the amounts from the Corporate Debtor. (b) The claim is time-barred, and the Operational Creditor has not explained what it did in all these years to recover the claim from the Corporate Debtor. (c) There is no 'default' within the ambit of the IBC, which alone would give the Operational Creditor the locus standi to maintain the instant petition under section 9 of the IBC. (d) There is no document that substantiates the claim of the Operational Creditor that it advanced Rs. 4,94,350/- to the Corporate Debtor or gave opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of limitation, in which case the applicability of section 18 or section 19 of the Limitation Act, 1963, may have a bearing. 14. The Hon'ble Supreme Court, in the matter of B.K. Educational Services Private Limited vs. Parag Gupta Associates [2018 (14) SCALE 482] (11.10.2018), has clearly laid down in para 27 as follows: - 27. It is thus clear that since the Limitation Act is applicable to applications filed under sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. The right to sue, therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tries Private Limited vs. MMTC Limited [2004 (76) DRJ 269)], Food Corporation of India vs. Assam State Cooperative Marketing Copnsumer Federation Limited others [ (2004) 12 SCC 360], JB Budhiraja vs. Chairman, Orissa Mining another [ (2008) 2 SCC 444], Prabhakaran others vs. M Azhagiri Pillai (dead) by LRs and others [(2006) 4 SCC 484], Sudarshan Cargo Private Limited vs. Techvac Engineering Private Limited [ILR 2003 Kar 3941] and M/s. Vijay Industries vs. National Technologies Limited [ (2009) 3 SCC 527] relied upon by the Learned Counsel for the Operational Creditor, have not been considered. On whether the transaction in question is an Operational Debt within the meaning of section 5(21) of the IBC: 18. Since the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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