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TMI Blog2021 (5) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... as discussed earlier, the date of default relied upon by the Operational Creditor as 29.11.2019 has been found to be erroneous. Therefore, basing on the date of default of 29.11.2019, the question of computing of limitation does not arise. Whether a different date of default could be adopted basing on the other invoices and other dates relied upon by the Operational Creditor? - HELD THAT:- From the perusal of the invoices, it is observed that the last invoice annexed in the petition is of 17.02.2014. If we assume 17.02.2014 as the date of default for calculating Limitation, it is contended by the Operational Creditor through its rejoinder that the present petition is not barred by Limitation since the Corporate Debtor has made a part payment of ₹ 5,00,000/- on 06.01.2017 through cheque and the Petition has been filed on 31.12.2019, which is within 3 years from the date of encashment of cheque. In the instant case, the Operational Creditor has relied upon the invoices pertaining to the period from 14.01.2014 to 11.11.2019 in its main Petition as well as in the demand notice under Section 8 of IBC, 2016 to compute the Operational Debt amounting to ₹ 63,76,9474/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er's projects being developed at Lucknow. 7. It is further stated by the Operational Creditor that it had entered into multiple work orders/contracts, for the said architectural services, with the Corporate Debtor. The details of the work orders/contracts are reproduced below: 8. It is submitted by the Operational Creditor that as per the work order/contract, delivery of work was scheduled in stages. The payment was to be disbursed on delivery of the work and bills raised by the Applicant. 9. It is further submitted by the Operational Creditor that after various follow ups and persuasion, the Corporate Debtor issued a Cheque No. 371672 of ₹ 5,00,000/- against the discharge of its liability towards the Operational Debt due. It is added that the same was presented to the Bank and was cleared on 06.01.2017. 10. That the details of the unpaid invoices as averred by the Operational Creditor in para 9 of the Part-IV of the Petition are reproduced below: 11. It is submitted by the Operational Creditor that since the Corporate debtor failed to make the due payments, it had issued a 'Demand Notice' dated 04.12.2019 under Section 8 of the IBC, 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Operational Creditor itself has admitted at Page 262 of the Petition that it had done only 50% of the work corresponding to the Invoice No. 1058 at serial no 4 and 75% work corresponding to the Invoice No. 1059 at serial no. 5 of the table (reproduced below). Since 100% of work was not completed by the Operational Creditor, no claims could be raised by it. 17. That the Operational Creditor has filed its rejoinder and stated that the Corporate Debtor has not annexed any evidence, which could substantiate that the claim of the Operational Creditor is disputed. 18. It is further submitted by the Operational Creditor in its Rejoinder that the present Petition is not barred by Limitation since the Corporate Debtor has made a part payment of ₹ 5,00,000/- on 06.01.2017. 19. Further, the Operational Creditor has placed reliance on the Judgment of Hon'ble NCLAT dated 13.01.2020 in the Company Appeal (AT) Insolvency No. 756 of 2018 in the matter of Vivek Jha Vs. Diamler Financial Services India Private Ltd. Anr., wherein the following was held: 31. The Demand Notice dated 17.08.2017 was issued by the Respondent/Applicant for which the 'Corporate Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. in Company Appeal (AT) (INS) NO. 527 of 2020, which reads as below: 22. Now, we have considered the objection of ld. counsel for the respondent that the claim is barred by limitation. The ledger account is a running account which shows that on 05/11/2015, the respondent has made payment of ₹ 12 lacs to appellant and from this date of acknowledgment within three years, that is on 15/01/2018 the application is filed. Thus, the application is within period of limitation. We agree with the finding of the Adjudicating Authority that the application is filed within the period of limitation. 21. Per Contra, the Corporate Debtor has submitted that the Part Payment does not extend the limitation as held by Hon'ble NCLAT vide its Judgment dated 05.03.2020 in the Company Appeal (AT) (Insolvency) No. 1166 of 2019 in the matter of Bimalkumar Manubhai Savalia Vs. Bank of India: 11. It is to be seen that Article 19 of the Limitation Act will fall under the category of first division of schedule which applies to the suits. However, Section 7 of the IBC is not a suit and as held by Hon'ble Supreme Court, Section 7 is an Application under the IBC which falls under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Clauses Act are evidently clear that in cases where there is an ambiguity or suspicion with reference to the date of commencement of period of limitation in any Act or special enactment, the words 'from and 'to' employed in Section 9 of the General Clauses Act can be pressed into service.. 24. After hearing submissions of both the parties, this Bench notices that the Operational Creditor has relied upon the multiple dates of default as could be seen from its submission reproduced in Para 14 of this order. The relevant para indicating the last date relied upon is reproduced below: Fourthly, on 29.11.2019 upon lapse of 7 days time period for payment as per the demand letter dated 23.11.2019 as sent by the Applicant, whereby the provisional bills were updated as final bills and the same were neither disputed nor denied by the Corporate Debtor. Therefore, on the basis of the submission as made above, the date of default relied upon by the Operational Creditor is 29.11.2019. 25. That before examining the issue of limitation, it is necessary to see whether the date of default as relied on by the Operational Creditor is valid or not. From perusal of the Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. The right to sue , therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application. 28. That the Hon'ble Supreme Court vide the aforesaid Judgment has, inter-alia, held that the Limitation shall be computed from the date of default. In the instant case as discussed earlier, the date of default relied upon by the Operational Creditor as 29.11.2019 has been found to be erroneous. Therefore, basing on the date of default of 29.11.2019, the question of computing of limitation does not arise. 29. The next question arises before us is whether a different date of default could be adopted basing on the other invoices and other dates relied upon, as reproduced in Para 14 of this order, by the Operational Creditor. 30. From the perusal of the invoices, it is observed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 521.35/- in the Demand Notice under Section 8. We are of the view that the Tribunal does not have Jurisdiction in these Insolvency Proceedings to cut-short the invoices which would cause recurring dates of cause of action as it is not a suit for recovery 22.....It is not the discretion of the Tribunal to accept one date or the other. The date of default is fixed and hence a crucial date and cannot be shifted........ 33. From the aforesaid Judgment, it can be inferred that this Tribunal can neither confine to one or other invoice especially when the Applicant has relied on all the invoices to arrive at the amount of default in the Demand Notice under Section 8 nor can it cut short the invoices, which would cause recurring dates of cause of action. Further, it is not the discretion of this Tribunal to accept the multiple dates of default. 34. In the instant case, the Operational Creditor has relied upon the invoices pertaining to the period from 14.01.2014 to 11.11.2019 in its main Petition as well as in the demand notice under Section 8 of IBC, 2016 to compute the Operational Debt amounting to ₹ 63,76,9474/-. The details of the unpaid invoices are given in the Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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