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TMI Blog2021 (2) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... ation Act and the right to apply will arise from the date of default. It is not disputed that the instant application has been filed much after the completion of the limitation period of three years reckoned from the date of default as stated in the application itself. Further the Applicant herein has also failed to place on record any other document which either reflects existence of circumstances covered under Section 5 of the Limitation Act for condonation of delay or circumstances covered in Section 18 of the Limitation Act allowing extension of limitation period. Thus the applicant has not been able to prove that the instant Application is within time and not barred by limitation - this Adjudicating Authority is of the view that the Application is liable to be dismissed on the sole ground of limitation as all the invoices which are subject matter of the instant Application are beyond the time period of three years. Pre-existing dispute or not - HELD THAT:- There exists a pre-existing dispute between the parties, which was raised much prior to the issuance of demand notice u/s 8 and the same is evident from the email dated 28.04.2015 - it is evident that there exists a pre-exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that a total of nineteen (19) invoices worth ₹ 37,00,361/- were raised against the Corporate Debtor. d. That the Corporate Debtor had to pay the bills as per the availability of the funds and not as per the invoices raised. That as per terms and conditions of the Purchase Order, the material was to be dispatched on TO-PAY basis. e. That the Operational Creditor has completed the supply of material, raised invoices and accordingly received the payment to the tune of ₹ 25,67,523/- on several dates and last date of payment was 06.02.2015. That a balance amount of ₹ 11,32,839/- is due and payable. That the operational creditor was continuously and consistently following up for the pending debt till the filing of the instant application. f. That, C forms against all invoices have been downloaded from the Commercial Taxes Department by the corporate debtor against all these invoices /bills but not issued to the operational creditor. Operational creditor has asked the Corporate Debtor for C forms which are collected from the Commercial Taxes Department. g. That on 28.12.2018, the Commercial Tax Officer, Tarnaka- 1 Circle, Hyderabad had given notice to the Operationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly dated 25.10.2019 to the demand notice of the Operational Creditor with vague grounds and the operational creditor has denied the reply of Corporate Debtor in total. It is stated that, in his reply the corporate debtor said that, he has paid the amount of ₹ 3,58,372/- in cash to labour, which is denied by the operational creditor and operational creditor submitted that, he has never given any consent to corporate debtor for the payment to labour. Further it is stated that, in his reply the corporate debtor said that, he paid 2.5 lakhs to operational creditor vide cheque No.475570 dated 06/01/2015 which is denied by the operational creditor as he has not received any cheque payment. The corporate debtor said in his reply that, he has paid ₹ 2,90,210/- to M/s Shyam Steels by NEFT, the same is denied by the operational creditor since he is not concerned with payment to Shyam Steels as he was not informed before paying to Shyam Steels and operational creditor has never given consent to corporate debtor to pay the amount to M/s. Shyam Steels. It is submitted that, the same reply is given to corporate debtor by denying all averments made herein and demanding the corporate d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.01.2015 13 361501085633974 RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS ENGINEERING WORKS 2,00,995.00 17.01.2015 15 361501175130802 RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS ENGINEERING WORKS 2,17,970.00 23.01.2015 16 361501236123346 RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS ENGINEERING WORKS 1,12,390.00 27.01.2015 18 361501271520877 RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS ENGINEERING WORKS 2,66,631.00 09.02.2015 19 361502095880822 RVR PROJECTS PVT LTD. TO MAYUR ROLLING SHUUTERS ENGINEERING WORKS 5,40,990.00 TOTAL 34,44,681.00 MAYUR ROLLING SHUTTERS ENGINEERING WORKS FABRICATION REALING WORK LABOUR CHARGES AT RVR NTPC SITE @ 20*12784 KGS AS PER THE VERBAL ADVICE AT YOUR SITE BILL NO.062 DATED 06.08.2015 2,55,680.00 BILL GRAND TOTAL (A) 37,00,361.00 PAYMENT RECEIVED (B) 25,67,523.00 BALANCE DUE (A-B) 11,32,838.00 n. Reiterating above, Ld. Counsel for the Operational Creditor stated that it has no option except to initiate the corporate insolvency process against the Corporate Debtor under Section 9 of IBC 2016. 4. The Corporate Debtor filed its counter inter-alia stating as under:- a. That initially Corporate Debtor vide order in RVR/NTPC(GPL)/WO/2014/3066 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the said email, transaction and payment statements were attached and for the first time they stated that they executed works to the tune of ₹ 39,90,571.00/- (inclusive of Fabrication work), were paid a sum of ₹ 32,67,523.00/- and that the Corporate Debtor herein owes a sum of ₹ 7,23,048.00 to them. In fact in the said email also, the Operational Creditor herein did not seek any repayment for the sole reason that they committed a breach of contract and they failed to execute the contract as agreed upon. h. That the Corporate Debtor has replied to the said email by specifically stating that no dues are pending from our end. That the first email addressed to Corporate Debtor after a period of 3 years states that it owes a sum of ₹ 7,23,048.00/-. However, the present Application is filed seeking a sum of ₹ 11,32,839.00/-. This itself shows that the instant application is filed only with an intention to harass the company herein and to make undue financial gain. i. That the amounts due are of the year 2015 and the same are disputed. j. That vide various email communications, Corporate Debtor has categorically stated that some of the bills produced for ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning. Limitation would only run from the date of breach under Art. 115 of the Schedule to the Limitation Act, 1908. On the plain words of the letters of guarantee it is clear that the defendant undertook to pay any amount which may be due by the Company at the foot of the general balance of its account or any other account whatever. We are not concerned in this case with the period of limitation for the amount repayable by the Company to the bank. We are concerned with the period of limitation for enforcing the liability of the defendant under the surety bond. We hold that the suit to enforce the liability is governed by Art. 115 and the cause of action arises when the contract of continuing guarantee is broken, and in the present case we are of the view that so long as the account remained a live account, and there was no refusal on the part of defendant to carry out her obligation, the period of limitation did not commence to run. 7. Heard both the sides and perused the record. 8. It is the case of the Applicant that it has received an order for supplying of mild steel pressed door frames with thickness of 1.25 mm including hinges jamb, lock jamb, bead rolling from the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply under the IBC will be from date of default. 11. It is not disputed that the instant application has been filed much after the completion of the limitation period of three years reckoned from the date of default as stated in the application itself. Further the Applicant herein has also failed to place on record any other document which either reflects existence of circumstances covered under Section 5 of the Limitation Act for condonation of delay or circumstances covered in Section 18 of the Limitation Act allowing extension of limitation period. Thus the applicant has not been able to prove that the instant Application is within time and not barred by limitation. The judgement relied upon by the applicant does not apply to the instant case as the facts of the present case are otherwise. 12. Thus, this Adjudicating Authority is of the view that the Application is liable to be dismissed on the sole ground of limitation as all the invoices which are subject matter of the instant Application are beyond the time period of three years. 13. Further, it is seen that there exists a pre-existing dispute between the parties, which was raised much prior to the issuance of demand notice u ..... 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