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TMI Blog2021 (11) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... d the period of three years from the date of default. The Hon'ble Supreme Court in BABULAL VARDHARJI GURJAR VERSUS VEER GURJAR ALUMINIUM INDUSTRIES PVT. LTD. ANR. [ 2020 (8) TMI 345 - SUPREME COURT ] has held that the right to apply under the code accrues on the date when the default occurs and that the date of commencement of the code is not the trigger point for the limitation and if the default had occurred over three years prior to the date of filing of the application, the application would be time-barred. It is clear that the Present application filed under section 9 of IBC, 2016 fails the test of limitation - since the debt is time-barred, there are no option but to reject the prayer of the Operational Creditor to initiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es provided by the Applicant was decided to be ₹ 3,85,000/-. The Applicant further submitted that as the Work progressed, timely payments were being made by the Respondent in accordance to the installments agreed in the work order. ii. That the Respondent made 60% payments as per Schedule 2 of the Work Order towards the bills by the applicant. That the last payment of ₹ 1,18,226/- was received by the applicant on 24.06.2015 and the last demand for the remaining payment was raised on 21.04.2016. iii. The Applicant stated that the bills issued were of the amount of ₹ 3,85,000/- out of which the applicant has received a sum of ₹ 2,31,000/- and the remaining principal amount of ₹ 1,54,000/- is still pendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of Section 5(20) of the Code, as the amount which is purportedly claimed to be in default does not arise in relation to any amount payable towards supply of goods, or rendering services, or in connection with the employment, or in relation to any statutory dues as prescribed and mandated under Section 5(21) of the Code. 3. The Learned counsel for the operational Creditor while advancing the arguments submitted that the issuance of Invoice is not a mandatory requisite under section 9 of the I B Code, 2016 and the same has been reiterated by the NCLAT in the case of Neeraj Jain v. Cloudwalker Streaming Technologies Private Limited C.P.(IB) No. 260/BB/2019 wherein the NCLAT stated that FORM-5 in PART-V of the Regulations mandated the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Limitation Act for filing a petition under Section 9 started running from the alleged date of default, i.e., 21.04.2016. Therefore, petition if any under Section 9 of the Code, for any alleged default should have been preferred by the Operational Creditor by 21.04.2019, i.e., 3 years from the date of default. i.e., 21 April 2016 (365 day * 3 = 1095 days). That the petition under Section 9 of the Code, was preferred for the first time on 12.03.2019 titled as M/s. Dewpoint v. Cloud 9 Projects Private Limited and Others IB-1434/(ND)/2019. However, the same came to be dismissed on 16.07.2019, with a liberty to file fresh petition. It is further submitted by the ld. Counsel for the Corporate Debtor that even with the liberty of Section 14 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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