9911796707
TMI Blog2020 (7) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... vate Limited ("Corporate Debtor") as provided under section 9 of the Insolvency & Bankruptcy Code, 2016 ("Code") read with rule 6 of Insolvency and Bankruptcy Board of India (Application to Adjudicating Authority) Rules, 2016 ("Rules") alleging that the Corporate debtor defaulted in making payment to the extent of Rs. 30,75,408/-. 2. The petition reveals that the petitioner has paid an advance of Rs. 40,00,000/- on 31/12/2014 to the Corporate Debtor for availing consultancy services in export of agricultural products. One Mr. Prajendra Jaroli and his son have formed the Corporate debtor company for providing consultancy services in the field of trading and export of agricultural products. The said Mr. Prajendra Jaroli was previously employ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Understanding (MoU) dated 24/08/2013 entered into between the petitioner herein and Mr. Prajendra Jaroli. The said petition was dismissed on 28/11/2019 and an appeal was preferred by Mr. Prajendra Jaroli before the National Company Law Appellate Tribunal wherein notice was issued by Hon'ble NCLAT to the petitioner herein on 7/1/2020 and the same is pending. 4. Since the Corporate Debtor failed to refund the alleged advance amount, the petitioner on 14/11/2019 issued a demand notice under section 8 of the Code to the corporate debtor demanding the said sum of Rs. 30,75,408/-. 5. It is submitted that Mr. Prajendra Jaroli, in his pleadings in the above said C.P. No. 1706/2019 enclosed the Ledger account for the period from 1/4/2014 to 31/3/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 24/08/2013 wherein the petitioner interalia agreed that Mr. Prajendra Jaroli shall be entitled to a sum of Rs. 4,50,00,000/-as full and final settlement of his account net of the amounts standing debit to Mr. Prajendra Jaroli and his family members and associates in the books of the petitioner as on 31/7/2013; thereafter Mr. Prajendra Jaroli continue to provide his consultancy services on the terms agreed in the Memorandum of Understanding (MoU) and advance payment was made to Mr. Prajendra Jaroli / his family/ associate entities for the service provided him; as part payment towards amount payable under Memorandum of Understanding (MoU), a sum of Rs. 30,00,000/- was paid by the petitioner on 31/12/2014 to the corporate debtor; the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , there has been no demand from the petitioner; there is no explanation as to why the invoices raised by the Corporate debtor were cleared by the petitioner from time to time when the amount of Rs. 30,00,000/- is till payable by the Corporate debtor as claimed in the demand notice; the demand notices relates to a claim which ex facie barred by law of limitation; in view of the above the corporate debtor denied the liability. 7. The corporate debtor filed reply to the petition and reiterated the contentions made in the reply to the demand notice and denied liability. 8. On hearing the counsels on both sides and on going to the pleadings the followings are the observations of this Bench: a. The petitioner solely based its claim in this pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been deducted. Hence the amount of Rs. 30 lacs paid is clearly a loan as depicted in the ledger. Hence the contention of the petitioner that Rs. 30,00,000/- is an advance towards commission payable to the corporate debtor is falsified. When the amount paid is a loan, the same does not fall under the definition of the Operational debt as provided under Section 5 (21) of the code which provides that "operational debt" means a claim in respect of provision of goods or services including employment or debt in respect of the payment of dues arising under any law for the time being enforce and payable to the central government, any state government or any local authority". Hence we hold that the amount claimed is not an operational debt and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bt, the amount was paid on 31/12/2014 and this petition was filed on 6/12/2019 and there being neither payment nor acknowledgement of liability within the period of limitation the claim is clearly barred by limitation. The petitioner submitted that since there are credit notes and debit notes accounted for in their accounts, the claim is not barred by limitation. However, the credit notes relates to the commission credited by the petitioner to the corporate debtor and adjusted towards the advance commission of Rs. 10 lacs. The postage and courier charges debited to the account of the corporate debtor on various dates from 29/2/2016 to 24/11/2017 by the petitioner is disputed by the corporate debtor as payable by the petitioner only and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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