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TMI Blog2021 (5) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating Authority in the year 2019 which is well within the period of Limitation. In reality, the Adjudicating Authority had committed an error in making an observation that the Application suffered from Delay and Latches and the same is clearly unsustainable in the eye of Law, in the considered opinion of this Tribunal . This Tribunal taking note of the fact that the Director of the Respondent through email on 15.11.2017 had assured the Appellant that the Respondent would making the payment towards the dues on monthly instalment basis (since the Respondent was passing through financial crisis) and further only partly settled the dues till February, 2018, and keeping in mind of the vital fact that the court notice was served upon the Respondent on 03.02.2020 and subsequently on 08.01.2021 - this Tribunal comes to an inevitable conclusion that the Adjudicating Authority (National Company Law Tribunal, Bengaluru Bench) had committed an error in issuing slew of directions to the Registrar of Companies , Bengaluru to examine whether the corporate Debtor had complied with the statutory requirement and to take appropriate action etc., and suffice it for this Tribunal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra, claim in question relates to the year 2017, for which the Petitioner issued Demand Notice in Form 3 only on 12th June, 2019 and thereafter filed the instant Petition. Though invoices in question contemplate payment within 10 days, failing which it carries an interest @ 24% p.a, the Petitioner has not initiated any legal proceedings prior to the instant Proceedings and the Petitioner has not explained the reasons for not initiating proceedings earlier. 7. As stated supra, as per the MCA website, the Corporate Debtor Active compliance was Active Non-Compliance. Since the year of 2016, the Corporate Debtor has failed to file its statutory returns. However, it is not known whether the Company is on active rolls of the ROC or not. If the Company failed to comply with statutory compliances, the ROC can take appropriate action to strike off it. And while striking off the Company, ROC can take into consideration of interest of Petitioner herein, in terms of extant provisions of Companies Act, 2013, and the Rules made thereunder. 8. For the aforesaid reasons and circumstances of the case, the Company petition is barred by laches and limitation, and it is filed with an inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 69,778/-being the total amount. 6. As matter of fact the Appellant/Operational Creditor in Part IV of the Form 5 had clearly mentioned that the Principal sum was ₹ 15, 74, 803/- + ₹ 6,94,975/- being the interest sum and the total debt due was ₹ 22, 69,778/-. In fact, the copy of the email exchanged between the Appellant/Operational Creditor an the Corporate Debtor shows that the debt was acknowledged by the Corporate Debtor to an extent of ₹ 22, 69,778/-. 7. The categorical stand of the Appellant is that the mandatory provisions of section 9(3) (a) (b) and (c) of the I B Code, 2016 were duly complied with by the Operational Creditor and since the Respondent had refused to the repeated requests made by the Appellant and failed to honour the commitment of repayment, the Appellant had filed the Section 9 Application before the Adjudicating Authority. 8. The Learned Counsel for the Appellant submits that the Adjudicating Authority had committed an error in holding that the consideration of mere debt and default in question without knowing/service of notice on the Respondent would be futile exercise and this was held by the Adjudicating Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat be the fact situation, when the Respondent had failed to appear before the Adjudicating Authority then, it is duty bound to record the absence/ there being no representation of the Respondent, to hold that service was held sufficient and to proceed further, as per Rule 49 of the NCLT Rule, 201₹ 6 under the caption Ex parte hearing and disposal . 14. In the present case the debt fell due on 01.02.2017 being the date of last invoice raised by the Appellant/Operational Creditor. The Application was filed before the Adjudicating Authority in the year 2019 which is well within the period of Limitation. In reality, the Adjudicating Authority had committed an error in making an observation that the Application suffered from Delay and Latches and the same is clearly unsustainable in the eye of Law, in the considered opinion of this Tribunal . 15. It cannot be brushed aside that as per section 250 of the Companies Act, 2013, where a company stands dissolved under section 248, it shall on and from the date mentioned in the notice under (5) of that Section ceased to operate as a Company and the certificate of incorporation issued to it shall be deemed to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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