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TMI Blog2021 (12) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... upon, as the same is not a valid agreement in the eye of law, so Learned Counsel for the Appellant relied on an order passed by this Appellate Tribunal in B.S.E. Ltd. Vs. Neo Corp International Ltd. dated 05.04.2019 (supra) is not applicable in this matter - Moreover, Listing Fees comes under the ambit of Regulatory dues which SEBI is entitled to recover. The Respondent being an entitly registered under SEBI, is under an obligation to follow the Regulations prescribed by SEBI for recovery of its dues. The dues so said are not Operational Dues but Regulatory Dues . The Insolvency Law Committee suggests that Regulatory Dues are not to be recovered under Operational Debt . The appeal is dismissed. - Company Appeal (AT) (Insolvency) No. 133 of 2021 - - - Dated:- 17-12-2021 - [Justice Anant Bijay Singh] Member (Judicial) And [Ms. Shreesha Merla] Member (Technical) For the Appellant : Ms. Surekha Raman, Advocate For the Respondent : None JUDGMENT Justice Anant Bijay Singh; This Appeal has been preferred by the Appellant (Operational Creditor) through its Assistant Manager aggrieved and dissatisfied by the order dated 31.12.2020 passed by the Ld. Adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly Clause 38 of the said Agreement, in clear and unequivocal terms casts an obligation upon the Respondent to pay the requisite Annual Listing fees ( ALF ) on or before the 30th day of April, every year. vi) Further case is that pursuant to the intention to avail the service of listing of its securities on the trading platform of the Appellant, the Respondent, on 27.06.1995 entered into the Listing Agreement and thus was bound to pay the ALF to the Appellant. By failing to make timely payments of the ALF, the Respondent has committed breach of contract and listing requirements while its securities continue to be listed on the platform of the Appellant. vii) The claim of the Appellant in the present case is with regard to the operational debt in the form of outstanding ALF owed by the Respondent to the Appellant. The Securities of the Respondent are listed on the trading platform of the Appellant and the Respondent is liable to pay such an amount of the service of listing of its securities on the Appellant/Exchange. viii) Further case is that the Respondent made payments of the ALF till Financial Year 2013-2014, last of which was paid on 28.06.2013 when the Respondent paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with Written Submissions and while assailing the impugned order have formulated the question of law as hereunder: Whether the right to apply under Section 9 should be subject to limitation when it is apparent that the Respondent s continuous default is not merely restricted to the initial date of default but on every subsequent occasion when the Respondent was obliged to make payments but failed to pat ALF? 4. The Learned Counsel for the Appellant submitted that the Ld. Adjudicating Authority failed to appreciate that the default was not a one off occurrence that happened three years prior to the date of filing of the application, or on 01.04.2015 alone in such case the application would be barred under Article 137 of the Limitation Act but the default was in respect of ALF payable under separate invoices raised for each of the years post 2015 together with arrears of the previous years and interest accrued thereupon and which fact was rightly mentioned in Form 3 (at page 81 of the Appeal Paper Book) as also in Form 5 Part IV (at page 105 of the Appeal Paper Book) under date of default as 01.04.2015 till as of date. 5. It is further submitted that the Ld. Adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achh Bharat Cess and Krishi Kalyan Cess, totalling ₹ 5,57,959/-. It appears that the Adjudicating Authority failed to consider the aforesaid documents attached with Form-5 and came to a wrong conclusion that the application under Section 9 is barred by limitation. 4. It is true that Limitation Act, 1963 is applicable in terms of Section 238A of the I B Code. For the purpose of filing application under Section 9, Part II of the Schedule of Limitation Act, 1963 will apply, which reads as under:- PART II OTHER APPLICATIONS Description of application Period of Limitation Time from which period begins to run 137. Any other application for which o period of limitation is provided elsewhere in this division. Three years When the right to apply accrues. 5. As in the present case, the right to apply accrues on 1st April, 2017, we hold that the application under Section 9 was not barred by limitation. 6. Part I of the Schedule relates to filing of suits, money suits, etc. If the claim is barred by limitation then a person can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting Authority also takes note of the fact at para 13 of the impugned order the agreement between the parties, it is found that some of the pages/places are found blank and no remarks is given to that effect. However, the agreement contains the initial of the parties only in the last page and none of the pages of agreement contains the signature of the parties and it also found that the agreement entered between Adeshwar Cotton Industries Ltd. with The Stock Exchange of Bombay. However, there is no seal and signature for and on behalf of The Stock Exchange of Bombay. Admittedly, the name of Adeshwar Cotton Industries Ltd. changed to ACIL Cotton Industries Ltd., but to that effect no agreement has been entered by the petitioner with that of ACIL Cotton Industries Ltd. As such, there is no agreement between the Appellant and present Respondent. 17. We are of the considered view that the Ld. Adjudicating Authority has rightly come to the conclusion that the agreement so filed cannot be relied upon, as the same is not a valid agreement in the eye of law, so Learned Counsel for the Appellant relied on an order passed by this Appellate Tribunal in B.S.E. Ltd. Vs. Neo Corp Internati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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