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TMI Blog2020 (2) TMI 1592X X X X Extracts X X X X X X X X Extracts X X X X ..... Eight Thousand One Hundred and Thirty) including the interest @ 18% from 11/02/2012 for the services rendered in pursuance of the work order issued by the Corporate Debtor dated 22/02/2011. 2. The brief facts for the consideration of this application are as follows: - i. The Corporate Debtor issued a work order on 22/02/2011 to the Operational Creditor for interior decoration of the 1st, 2nd and 4th floor of the building at EN24, Salt Lake, Sector-V, Kolkata-700091. On completion of the work, the Operational Creditor raised three bills on 11/02/2012 bearing bill No. Keshav/11-12/1, Keshav/11-12/2, Keshav/11-12/3 total Amounting to Rs. 35,44,776.00 and forwarded the same to the office of the Corporate Debtor through a forwarding letter dated 11/02/2012, out of which, an amount of Rs. 6,34,886.00 was paid by the Corporate Debtor against the aforesaid dues. In spite of giving several reminders, the Corporate Debtor did not pay the outstanding bill amount. Finding no other alternatives, the Operational Creditor, on 07/11/2017, issued demand notice under Section 8 in Form 3 under the Insolvency and Bankruptcy Code, 2016 read with Rule 5 of the Insolvency and Bankruptcy (Applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers from third party vendors, who were inducted by the Operational Creditor in order to carry out the said works. The original invoices, vouchers or challans were also not made over by the operational creditor to the corporate debtor. It is denied that a sum of Rs. 87,48,130.00 or any part thereof is due or payable as claimed by the Operational Creditor. ii. The Corporate Debtor has not promised to pay any amount as claimed by the Operational Creditor. The Corporate Debtor was on the verge of sending the reply to the Form-3 notice issued by the Corporate Debtor. However, by the time the reply was made ready by the Corporate Debtor, the present petition was served upon the Corporate Debtor. It is incorrect to say that the Corporate Debtor is commercially insolvent. The Corporate Debtor is not liable to pay the amount as demanded by the Operational Creditor. No amount is due and payable to the Operational Creditor. Accordingly, this application is liable to be dismissed. 4. The Operational Creditor filed Rejoinder denying the allegations leveled by the Corporate Debtor in the reply affidavit and contended that the Corporate Debtor is trying to evade the payments found due by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd no Heaes of dispute also has been served upon the Operational Creditor, but issued reply letter dated 14.12.2017 showing his readiness to settle the matter and that despite the reply and approaching the respondent for discussions, the Corporate Debtor did not pay the debts and therefore the application is liable to admitted. 6. When this case was taken up for hearing, the learned counsel appearing for the Respondents/Corporate Debtor mainly objected this application contending that the claim of the Operational Creditor is barred by limitation. According to the learned counsel for the Corporate Debtor, the bills on the basis of which claims have been raised are dated 11th February, 2012 and therefore, the application filed on 26/10/2018 is barred by limitation and for the said reasons itself, this application is liable to be dismissed. 7. Upon perusal of the records and hearing the contentions on both sides, we are satisfied that the Corporate Debtor has not succeeded in establishing any pre-existing disputes. It can be legitimately inferred that it is why the Ld. Counsel did not address any argument attempting to prove a pre existing dispute other than a challenge that the cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 Sub:-Demand _Notice/Invoice demanding payment in respect of operational debt due from West Bengal Bioltech Development Corporation Limited, under the Code Madam /Sir, With reference to you Demand Notice date 07.11.2017 on the above subject, I am directed to request you to send one of your representatives /officials with all relevant papers/documents in this regard to my office chamber at Vigyan Chetana Bhavan, DD 26/B, St Floor, Sector-I, Salt Lake, Kolkata-700064 for a discussion in order to settle your claim soon. A date and time of your convenience for the said purpose may please be communicated at the earliest. This is topmost urgent. Yours Faithfully Managing Director West Bengal Biotech Development Corporation Limited 9. Relying the reply notice, the learned counsel for the Operational Creditor has submits that the letter amounts to a promise to pay a time barred debt under section 25 (3) of the Indian Contract Act. Sub- Section (3) of Section 25 of the Indian Contract Act reproduced as follows: - "(3) It is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of Mumbai has held that "If Ex. 35 does not amount to an acknowledgement within the meaning of that expression appearing in section 18 of the Limitation Act, the same certainly attracts sub-section (3) of Section 25 of the Indian Contract Act. Therefore, however looked at, the claim was within limitation and we so hold'. 13. After elaborate discussions, the Hon'ble High Court of Mumbai has held that the letter referred to above in the said judgement falls within the purview of sub-section (3) of section 25 of the Indian Contract Act and construed as a promise to pay and therefore the period of limitation starts from the date of promise. Applying the propositions in the above said judgement in the case in hand, we are of the considered view that the letter dated 14.12.2017 issued by the Corporate Debtor is a promise to pay after discussions and thereby filing of this application on 26.10.20 18 is within the period of limitation, and application filed is perfectly maintainable. There is no other objection sufficient enough to uphold any one contention in the objections being raised on the side of the Corporate Debtor. It appears to us that the claim of the Operational Credito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or order in any court of law, tribunal, arbitration panel or other authority; b) Transferring, encumbering, alienating or disposing of by the corporate dette any of its assets or any legal right or beneficial interest therein; c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. v. The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated, suspended, or interrupted during moratorium period. vi. The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. vii. The order of moratorium shall have effect from the date of admission till the completion of the corporate insolvency resolution process. viii. Provided that where at any time during the corporate insolvency ..... X X X X Extracts X X X X X X X X Extracts X X X X
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