9911796707
TMI Blog2017 (3) TMI 1867X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 9 of the Insokency and Bankruptcy Code, 2016 against corporate debtor M/s Action Ispat and Power Private Limited. 2. The precise case of the applicant is that in the course of its business the applicant company had supplied equipments and parts (2* 15 Ton Landle Refining Furnance) through various sales invoices dated 30.03.2011 for an aggregate value of Rs. 2,92,51,560/- to M/s Action Ispat and Power Private Limited. It is also their case that the supplies were accepted without any demur and M/s Action Ispat and Power Private Limited made part payments against these supplies on various occasions and the last payment against the said supplies was made on 29.08.2012 for Rs. 20,00,000/-. As per the petitioner a sum of Rs. 79,76,715/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the company failed to take delivery in time and as such total value of the supplies got enhanced. 6. Petitioner submits that despite repeated demands and requests made by the Petitioner for payment of the outstanding dues amounting to Rs. 79,76,715/-, respondent company has failed and neglected to pay the same on one pretext or the other. 7. Petitioner further states that a legal notice dated 15th May, 2016 was sent to the respondent company demanding payment of the outstanding sum of Rs. 79,76,715/-. however despite such notice the company failed to make payment of the aforesaid outstanding dues. 8. It is submitted that respondent company has acknowledged the aforesaid dues in the company's audited financial statements for the FYs 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les invoices all dated 30th March, 2011. Almost long six years have since passed. There is also no dispute that last part payment against the said supplies was made by respondent company on 29.08.2012 and there after it has stopped making any payment to the petitioner. The present application has been filed on 15.02.2017 much after the limitation period of three years. 14. Ld. Counsel for the petitioner vehemently argued that no part of the petitioner's claim is barred by limitation in as much as the transaction between the petitioner and the respondent company was continuous. It is further contended that petitioner has been constantly chasing with regular follow up actions for the payment of the outstanding dues. In this regard there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bt the Petitioner has enclosed the financial statements for the FYs 2012-13, 2013-14, and 2014-15 of the respondent company, but it could not be specifically shown as to where the aforesaid dues outstanding to petitioner has been reflected in the company 's audited financial statements or which entry establishes that the said amount has not been written off. It could not been shown specifically as to where acknowledgement has been made by respondent company in its balance sheet. All that could he shown from the financial statements of the company is one general entry showing total outstanding amount without any specific imputation of outstanding dues in the name of the petitioner. It is pertinent to note here that last part payment ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of debt which has become due and payable. (Emphasis given) A debt which is not recoverable for any valid reason ceases to be an amount due and payable. Default arises for non-payment of an amount which could be recovered in law. Default is the event on the occurrence of which, the insolvency proceedings may be initiated under the Code. 19. Claims which are time barred are not amount due and under law. Creditors have no right to recover claims of such due that become time barred. The debt in question has become more than three years old and was, therefore, not enforceable from respondent company in view of the law of limitation. Consequently in the present case, as discussed, there has been no default for initiation of insolvency ..... X X X X Extracts X X X X X X X X Extracts X X X X
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