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TMI Blog2021 (12) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... facts giving rise in the instant Appeal are as under: i) The Operational Creditor is a corporation registered and organised under the laws of State of Delaware, USA and is engaged in the business of manufacturing of Pharmaceutical products, particularly plasma products such as Rhogam, an Anti-D immunoglobulin. ii) The Corporate Debtor had represented to the Operational Creditor/applicant that it had the necessary approvals and licences from the concerned authorities in addition to the necessary expertise, facilities and organisation for the distribution and sale of pharmaceutical products. iii) Based on the assurances, the Operational Creditor entered into a Distribution Agreement dated 21.03.2014 (hereinafter referred to as the 'Agreement') with the Corporate Debtor for the purposes of distribution and sale of its pharmaceutical products only until the subsidiary/Indian affiliate of the Operational creditor namely Kedrion India Biopharmaceuticals Pvt. Ltd. was capable of doing so. iv) Further case is that during the course of its business operations, the Operational Creditor raised several invoices upon the Corporate Debtor with respect to the sale and distribution of its pha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e towards the aforesaid operational debt. The said demand notice was undelivered and returned with a remark "no person found on this address", despite being delivered at the registered office address of the Corporate Debtor on which parties had been corresponding in the past. xi) On 07.08.2019, the Corporate Debtor was again served with a demand notice of the said date at the new registered office address as per the MCA records, inter-alia reiterating/urging the same facts as mentioned in the aforesaid Demand Notice dated 25.07.2019 and also demanding the payment of the outstanding operational debt. The Corporate Debtor on 17.08.2019 replied to the said demand notice issued by the Operational creditor, whereby the Corporate Debtor disputed the admitted and acknowledged dues payable to the Operational Creditor basis the dispute pending between DHS and the Corporate Debtor with regard to the supply of short shelf life products. xii) Further case is that in light of the aforesaid factual position, the Corporate Debtor has committed default as defined under Section 3(12) of the IBC and the aforesaid outstanding amount absolutely qualifies as an Operational Debt within the meaning of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount due to the Appellant and on 10 November 2018, the Respondent revised its settlement offer to USD 99,786.41/- (Annexure A-12 at page 145 to 148 of the Appeal Paper Book). 9. It is further submitted that the Appellant has not received any payment, the Appellant first issued a demand notice dated 25.07.2019 which was returned as "no person found on this address" ((Annexure A-8 at page 72 to 78 of the Appeal Paper Book) and thereafter issued a demand notice on 07.08.2019, under Section 8 of the IBC demanding a sum of USD 901,000/- as the amount due towards the operational debt (Annexure A-9 at page 79 to 90 of the Appeal Paper Book). 10. It is further submitted that the Respondent, by a letter dated 17.08.2019, refused to make any payment to the Appellant on the ground of an existing dispute with respect to the liability (Annexure A/10 at page 91 to 101 of the Appeal Paper Book). However, the Respondent acknowledged that it had made several settlement offers, accepting that there was an amount due from the Respondent to the Appellant. The relevant portion of the letter dated 17.08.2019 at page 101 of the Appeal Paper Book is hereunder: " 8. In the conspectus of the above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed fact situation of the present case, where only the date of default as 08.07.2011 has been stated for the purpose of maintaining the application under Section 7 of the Code, and not even a foundation is laid in the application for suggesting any acknowledgment of any other date of default, in our view, the submissions sought to be developed on behalf of the respondent No. 2 at the later stage cannot be permitted. It remains trite that the question of limitation is essentially a mixed question of law and facts and when a party seeks application of any particular provision for extension or enlargement of the period of limitation, the relevant facts are required to be pleaded and requisite evidence is required to be adduced. Indisputably, in the present case, the Respondent No. 2 never came out with any pleading other than stating the date of default as 08.07.2011 in the application. That being the position, no case for extension of period of Limitation is available to be examined. In other words, even if Section 18 of the Limitation Act and principles thereof were applicable, the same would not apply to the application under consideration in the present case, looking to the very av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the instant Appeal. The Ld. Adjudicating Authority has dismissed the Application filed by the Appellant herein under Section 9 of the IBC on the basis of question of limitation. The Appellant has filed the I.A. No. 2685 of 2020 seeking leave of this Appellate Tribunal to place on record certain additional documents, in para 3 it has been stated that the form of email correspondences ranging from 03.11.2017 till 11.01.2019 exchanged between the Appellant and the Respondent with respect to the settlement of the outstanding amount due and payable to the Appellant. The order dated 06.10.2020 dismissing the Application under Section 9 of the IBC by the Ld. Adjudicating Authority, the Appellant checked its internal records and it transpired that the aforesaid emails correspondences were available in its databased. It is quite evident from the said emails correspondences that the Respondent was engaging in settlement discussions with the Appellant towards the outstanding dues owed to it which were otherwise agreed by the Respondent. The Said emails communications were made available to the Appellant only after the receipt of the order dated 06.10.2020, hence the same could no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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