9911796707
TMI Blog2021 (3) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... /Corporate Debtor M/s Silvertaon Papers Limited, under Section 9 of IBC 2016 for the alleged default on the part of the Corporate Debtor in settling the amount of Rs. 60,33,294/- as on 31.12.2018 along with the interest component towards the goods supplied. The case of the operational creditor is as follows: i. The Operational Creditor supplied the Wheat Straws and raised 3 invoices in the name of proprietorship concern, however, the Corporate Debtor failed and neglected to pay the entire amounts under 3 invoices in question, issued by Operational Creditor. It is stated that as per the agreed conditions of payment for the supplies, the Operational Creditor/Applicant is entitled to charge interest @ 24% quarterly compounding 7 (seven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the present case. 3. The following objections have been raised by the respondent: * That it is most pertinent to mention that the applicant has deliberately not mentioned the date of default in Form V which fact itself make the whole proceeding as void-ab-initio, here it is also most important to mention the reason of non-mentioning of date of default as the date of default is 10.09.2016 and the alleged claim of applicant is time barred and due to which reason also the present application is not at all maintainable. * Further, the applicant had tried to get the limitation renewed on the basis of mere acknowledgment of a junior clerk which document itself is under challenge due to following reasons: a) The name of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... piry of limitation period. It is pointed out that the applicant had tried to get the limitation renewed on the basis of mere acknowledgment of a junior clerk which document itself is under challenge as the name of the Company i.e., "Corporate Debtor" is wrongly written as "Silvertoan Paper Mills Ltd." in place of "Silvertoan Papers Limited", the acknowledgement had been shown to the signed by a junior clerk named as "Deopal" while the acknowledgment is fabricated with the signature mentioned as "Devpal" and the said fabricated acknowledgement is under protest in criminal case no. 236/11 of 2020 in the district Court of Muzaffarnagar. * In respect of issues pertaining to vehicle number on which material was supplied it is submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecords. 6. The claim of the applicant is not admitted by the respondent. In fact there are certain issues which should be adjudicated before ascertaining the claim of the applicant. At this stage it is immaterial to consider who will succeed. Besides this forum, in the present proceeding, is not supposed to examine the merit of the disputed claims made by the parties. 7. Respondent has also filed criminal complaint in respect of the disputed acknowledgment. Without the said acknowledgement of account, the claim of applicant will be barred by limitation as the invoices were raised between April 2016 to August 2016 and the present petition was filed in November 2019. A person can file complaint of fraud or forgery only aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to proceedings under Section 7 of the Insolvency and Bankruptcy Code, 2016 ('Code'). 11 . In light of this ruling, a financial/operational creditor will have to be vigilant while initiating proceedings under the Code and ensure that application is within 3 years from the date of default. The creditor will be unable to take the benefit of the provisions of the Limitation Act, which provide for a fresh period of limitation to run/exclusion of time in computing limitation. The same rule shall apply for the operational creditor as well as per the judgement passed by the Hon'ble Supreme Court. 12. That apart the respondent has placed copies of invoices for re-supply of materials in place of defective materials. The said invo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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