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TMI Blog2020 (8) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... with regard to only one invoice i.e. Invoice No. 16011613002088, dated 09.09.2016, after considering the grace period of 20 days as agreed between the parties in terms of clause 2.4 of the Agreement dated 03.03.2016 as the right to sue under this invoice accrues on 29.09.2016. For the other two invoices for which the due date is 14.08.2016 and 21.08.2016 are clearly barred by limitation as the present petition has been filed on 23.09.2019. The invoice dated 09.09.2016 is only for an amount of 36,074/- and even if the interest @ 24% is added, the total amount comes to 61,288/-. This is well below the threshold limit of minimum amount of default of 1,00,000/- for any petition under section 7 or 9 to be considered/ admitted by this Tribunal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m and appointment of Interim Resolution Professional as prescribed under the Code and Rules thereon. 2. The averments of the petition filed by the Petitioner/ Operational Creditor in brief are described hereunder: i. M/s. Om Logistics Limited/ Operational Creditor is engaged in the business of providing Logistics Solutions to all multi-nations and reputed Indian Companies, including transportation by Road (Surface & Express), Air, Railway and Warehousing across the country. M/s. Om Logistics Limited / Operational Creditor and M/s. La Nourriture India Specialities Limited / Corporate Debtor had entered into a Contract dated 03.03.2016, which is annexed as Annexure-IV to the application for providing transportation services for movement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor. c. The Operational Creditor did not file any proof of booking freight services and the details of the consignments. d. The Operational Creditor has intentionally suppressed the fact that the La Nourriture is completely different entity from the Corporate Debtor i.e. La Nourriture India Specialities Limited. The Operational Creditor herein intentionally and deliberately by suppressing the facts, with malafide intention dragged the Corporate Debtor to the dispute and thereby caused irreparable loss and damage in pacifying the present litigation. As such, the present application deserves to be dismissed in toto by imposing heavy costs apart from taking other measures to prevent further abuse of process of law. 4. It is also averred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal under the guise of computer generated invoices without producing list of goods consigned or lorry receipt and mischievously harping on the false documents filed the present application for initiating Corporate Insolvency Resolution Process, which is nothing but abuse of process of law and also a fraud and mischief played by the Applicant before this Tribunal. 7. It is averred except the alleged three invoices there is no other document or correspondence from the Operational Creditor till issuing Notice under Rule 5 of Insolvency & Bankruptcy Rules, 2016 and even after the said notice there is no correspondence till date. 8. It is averred the present petition has been filed merely as an arm twisting tactics by the Operational Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Notice on 05.07.2018 demanding from the Corporate Debtor an amount of ₹ 1,27,074/-. It is submitted by her that the Corporate Debtor did not bother to send any reply to the said notice. Therefore, there being no other recourse than to file a petition under the Insolvency & Bankruptcy Code, 2016, Operational Creditor filed the present petition. It is submitted by her that in terms of the said invoices an interest @ 24% on the due amount is also recoverable from the Corporate Debtor. Accordingly, the claim for the purpose of the present proceedings under Insolvency & Bankruptcy Code has been worked out at ₹ 2,18,437/-, the details of which have been given at page 29 of the petition. In view of the said submissions, the Counsel p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the Corporate Debtor for making the payment. Accordingly, the due dates for the said invoices as per petitioner's own calculation become 14.08.2016, 21.08.2016 and 29.09.2016 as given at page 29 of the petition. As stated earlier, the Counsel for the Corporate Debtor has relied upon Hon'ble Supreme Court Judgement in the case of B.K. Educational Services Pvt. Ltd. with regard to applicability of the provisions of Limitation Act to applications filed under Sections 7 and 9 of the Insolvency & Bankruptcy Code. In the said case, the Hon'ble Supreme Court has held that "the right to sue, therefore, accrues when a default occurs. If the default has occurred over three years period to the date of filing of the application, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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