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TMI Blog2019 (11) TMI 1524X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2016 to the tune of ₹ 12,63,816.12/- and therefore, its claim is not barred by limitation. The applicant having failed in proving that it is the assignee of the debt due to the Siemens Ltd.., and that the claim being found barred by limitation, this application filed under Section 9 by the Operational Creditor is liable to be dismissed with no order as to costs - Petition dismissed. - C. P. (IB) No. 267/KB/2019 - - - Dated:- 5-11-2019 - Jinan K.R., Member (J) and Harish Chander Suri, Member (T) ORDER Jinan K.R., Member (J) 1. Siemens Health Care Private Limited/Operational Creditor has filed this application under Section 9 of the Insolvency and Bankruptcy Code, 2016, for initiating Corporate Insolvency Resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Corporate Debtor was supposed to pay the amount within 30 days. In case of default in payment, the Corporate Debtor had to pay the outstanding debt along with 18 per cent interest per annum to the Operational Creditor. f. In terms of the Distribution Agreement, the Operational Creditor supplied goods to the Corporate Debtor. The Corporate Debtor had received the goods without any demur or protest. However, the Corporate Debtor after utilizing the goods of the Operational Creditor failed to fulfil its obligation in making payment of the invoices raised upon it from 2015 to 2018. g. The Operational Creditor is maintaining a running account. The first instance of default on the part of the Corporate Debtor pertains to the invoice date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor has not turned up or contested the case despite the service of notice by way of a Newspaper publication. The corporate Debtor being absent was declared ex parte. 5. Heard the Ld. Counsel for the operational creditor. Perused the records. 6. Siemens Healthcare Private Limited/Operational Creditor filed this application under Section 9 claiming that an amount of ₹ 2,25,69,910.94/- (Rupees Two Crore Twenty Five Lakh Sixty Nine Thousand Nine Hundred Ten and Ninety Four Paisa) is due as an unpaid Operational debt from the Corporate Debtor on account of breach of the terms and conditions of the distribution agreement, Exhibit P-4. Exhibit P-4 is an agreement entered into between Siemens Limited and the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5(20) of the Code. The proof regarding the transfer of debt according to the operational creditor is the resolution dated 06.05.2016 by which the Siemens Ltd., transferred its healthcare business to the Siemens Healthcare Private Limited on 01.07.2016 and that said transfer was informed to the Corporate Debtor vide letter dated 11.01.2016. 10. Though a copy of the information regarding the transfer of hospitality business of the Siemens Ltd., informing the Corporate Debtor about the said transfer is produced, no proof produced to prove that the transfer of its business to the operational creditor, includes the transfer of the debt allegedly due from the Corporate Debtor. A copy of resolution was also not produced to prove that the trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled on 18.02.2019. Statement of Bank account or copy of ledger account of the Operational Creditor or the Corporate Debtor also not seen produced to prove the said part payment. 12. What is the limitation period prescribed under Limitation, Act, 1963 and applicable with respect to the claim in a case of this nature, is at present settled by the Hon'ble Supreme Court in Sagar Sharma Anr, Vs. Phoneix ARC Prvt. Ltd.. Anr. [ Civil Appeal no. 7673 of 2019 dated 30.09.2019] Article 137 of the Limitation Act 1963, is applicable in the present case so as to determine as to whether the claim is barred by Limitation. The right to sue accrues within 3 years from the date of default. According to the applicant, the first default took place ..... X X X X Extracts X X X X X X X X Extracts X X X X
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