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TMI Blog2021 (4) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... ter a period three years from the date of default is barred by limitation. The petition dismissed as being barred by limitation. - Hon ble Shri H. V. Subba Rao, Member (J) And Hon ble Shri Prasanta Kumar Mohanty, Member (T) ORDER [Per se: Shri Prasanta Kumar Mohanty, Member (T)] The present petition has been preferred by the Operational Creditor i.e. A. K. C. Infrastructure Pvt. Ltd. under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as a Code ) on 29.06.2018 seeking initiation of Corporate Insolvency Resolution Process (CIRP in short) in respect of the Corporate Debtor Company, namely, Amrit Cement Ltd. 2. The Petitioner / Operational Creditor i.e. A. K. C. Infrastructure Pvt. Ltd. is having its Register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdance with the terms thereof, the Operational Creditor duly completed the work satisfactorily for the Corporate Debtor. The Operational Creditor raised total 81 (Eighty One) invoices in favour of the Corporate Debtor for fabrication and erection work to the Corporate Debtor and in return the Corporate Debtor was liable to make payment to the Operational Creditor against the said invoices. 7. It is submitted that the total billing amount due is ₹ 54,23,469/- (Rupees Fifty Four lacs Twenty Three thousand Four hundred Sixty Nine only) and retention money is ₹ 48,54,716/- Forty Eight lacs Fifty Four thousand Seven hundred Sixteen only) exclusive of interest as accrued thereupon. Copies of the said invoices are attached with the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly) in terms of Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016 to the Corporate Debtor along with the proof of delivery, which is attached with the petition marked as Annexure H. 12. It is stated that two demand notices were issued by the Operational Creditor on 23.03.2018 and 4.4.2018 upon the Corporate Debtor and the Corporate Debtor vide their reply (Annexure-I page 161 162) denied payment of dues stating that the same is barred by limitation. 13. In response to the Operational Creditor s notice, the Corporate Debtor replied to the Operational Creditor on 04.04.2018 stating that it is vehemently denied and disputed that there is an unpaid amount of ₹ 1,98,95,546.00 (Rupees One Crore Nine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder value of fabrication erection of belt conveyor structure including transfer tower. (iii) 10% shall be paid on completion of total job. (iv) 10% after 3 (three) months from the date of commissioning of the Belt Conveyor. 15.2 As per work order the last 10% payment should have been made by the Corporate Debtor by 30.06.2011. 15.3 All the invoices were raised between 02.11.2010 to 10.12.2012. 15.4 Date of default is to be considered as on 01.07.2011 as per the work order i.e. after three months of the last payment due on 30.06.2011. 15.5 Last payment was received by the Operational Creditor on 11.02.2013 and three years is ending on 11.02.2016 15.6 Application under Section 9 of IBC has been filed by the Operational Creditor on 29.06.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the mechanism of the Code. The Court cannot be triggered in the year 2017 for a debt which was time-barred, say, in 1990, as that would lead to the absurd and extreme consequences of the Code being triggered by a stale or dead claim, leading to the drastic consequence of instant removal of the present Board of Directors of the corporate debtor permanently, and which may ultimately lead to liquidation and, therefore, corporate death. This being the case, the expression debt due in the definition Sections of the Code would obviously only refer to debts that are due and payable in law, i.e., the debts that are not time-barred. That this is the case has already been held by us in the Innoventive Industries. (supra) .. *** *** *** 36. The d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. ORDER 20. Considering the arguments advanced by the counsels of both the parties, papers / documents made available before this Bench, the observations mentioned in the Points 15. 15.1 to 15.6, 17 and the Judgments of the Hon ble Supreme Court in the cases of B. K. Educational Services and Babulal Vardharji Gurjar Vs Veer Gurjar Aluminium Industries Pv. Ltd. Anr. [Civil Appeal No.6347 of 2019], the present petition CP (IB) No.26/GB/2019 is hereby rejected, same being treated as barred by limitation. 21. We also make it clear that the observations made in this judgment are relevant only in regard to the issue determined that the application under section 9 of the Code is barred by limitation and not beyond. In other words, nothing in this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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