9911796707
TMI Blog2021 (3) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... Besides this forum, in the present proceeding, is not supposed to examine the merit of the disputed claims made by the parties. Time Limitation - HELD THAT:- 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. Existence of dispute - HELD THAT:- Existence of dispute largely depends on the facts and circumstances of each case. In the factual background of this case existence of real d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Creditor/Applicant is entitled to charge interest @ 24% quarterly compounding 7 (seven) days after the delivery of the goods. ii. It is submitted that as on 31.12.2018, outstanding amount under the 2 invoices are ₹ 86,23,601/- towards principal and ₹ 59,45,791/- towards interest calculated @ 24% compounded quarterly, thereby, aggregating to ₹ 1,45,69,392/-. That when the Operational Creditor approached the Corporate Debtor for payment of the outstanding dues, the Corporate Debtor sought more time to make the payment, however, the Corporate Debtor acknowledged and confirmed the outstanding dues of the Operational Creditor by endorsing the Statement maintained by the Operational Creditor. iii. The operational creditor ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self is under challenge due to following reasons: a) The name of the Company i.e., "Corporate-debtor" is wrongly written as "Silvertoan Paper Mills Ltd." in place of "Silvertoan Papers Limited". b) The acknowledgment had been shown by a junior clerk named as "Deopal" while acknowledgment is fabricated with the signature mentioned as "Devpal". c) The said fabricated acknowledgment is under protest in criminal case no.236/11 of 2020 in the district court of Muzaffarnagar. * The respondent has relied upon recent judgments by the Hon'ble Apex Court in the matter of Babulal Vardharji Gurjar v. Veer Gurjar Aluminium Industries Pvt. Ltd. & Anr. (Civil Appeal No. 6347/2019 dated 14.08.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of Muzaffarnagar. * In respect of issues pertaining to vehicle number on which material was supplied it is submitted that the material wheat straw was mostly supplied by the local farmers in bullock carts and sometimes on the local assembled vehicles due to which the vehicle numbers may not be correctly appropriated and admittedly the vehicle numbers mentioned in the applicant's invoice and/ or the challans can be similarly categorized as "no vehicle", "scooter" and "motor cycles" detailed list of which is not submitted here for the sake of brevity and can be submitted if asked by the Hon'ble Tribunal. * In respect of issue pertaining to material which is supplied back is similar material not sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 and the present petition was filed in November 2019. A person can file complaint of fraud or forgery only after knowing about the said fraudulent act. In the present matter the complaint has been filed after receiving the disputed acknowledgment of accounts. Therefore, till the outcome of the pending complaint, the claim of applicant remains disputed. 8. The Hon'ble NCLAT in the case of Ishrat Ali Vs. Cosmos Cooperative Bank Ltd. & Anr has observed that: "The date of coming into force of IBC Code does not and cannot form a trigger point of limitation for application filed under the Code. Equally, since "applications" are petitions, which are filed under the Code, it is Article 137 of the Limitation Act, 1963 which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epends on the facts and circumstances of each case. In the factual background of this case 'existence of real dispute' cannot be totally overruled. 13. That apart the respondent has placed copies of invoices for re-supply of materials in place of defective materials. The said invoices have been disputed by the applicant in its rejoinder. Therefore, there exist various questions which require a proper adjudication in order to ascertain the claim of applicant. 14. For the reasons stated above the application fails and therefore the same is dismissed as barred by limitation. 15. It is made clear that any observations made in this order shall not be construed as an expression of opinion on the merit of the controversy and the right o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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