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TMI Blog2021 (12) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 134 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 instant Appeal i.e. Company Appeal (AT) (Insolvency) No. 134 of 2021 was heard together with Company Appeal (AT) (Insolvency) No. 133 of 2021. 2. 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. Adjudicating Authority (National Company Law Tribunal), Ahmedabad Bench, Ahmedabad, Court 2 in C.P. (IB) No. 349/NCLT/AHM/2019 whereby and where under the Application filed by the Appellant herein (Operational Creditor) under Section 9 of the Insolvency and Bankruptcy Code, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r case is that the Respondent made payments of the ALF till Financial Year 2013-2014, last of which was paid on 31.05.2013 when the Respondent paid an amount of ₹ 44,944/- as ALF. Thereafter, the Respondent, even while being listed on the Appellant s trading platform, failed to make any further payments towards the obligatory ALF. vii) Further case is that the Appellant raised several invoices periodically calling upon the Respondent to pay to the Appellant is compliance with the clauses of the Listing Agreement and listing requirements, the ALF with arrears and such invoices that were duly served upon the Respondent. The Respondent despite receiving such invoices, wilfully neglected to remit the pending ALF and arrears thereof to the Appellant whilst continuing to avail the listing services on the trading platform of the Appellant. viii) Further case is that the continuing and recurring defaults committed by the Respondent in payment of the operation debt of ₹ 10,66,886/- [₹ 10,12,336/- (amounting to principal due and payable as on 03.04.2018) + 54,550/- (computed as interest payable as on March, 2019)], the Appellant issued a Demand Notice dated 15.03.2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 6. It is further submitted that the Ld. Adjudicating Authority failed to appreciate that failure to pay ALF by itself constitutes a continuous cause of action and is intrinsically linked to the services enabled and provided by Appellant and continuously availed by Respondent till 2019 despite such defaults. 7. It is further submitted that the Ld. Adjudicating Authority failed to appreciate that the Respondent has acknowledged the debt payable to the Appellant since the Respondent continued to avail the listing service on continuous basis which stands undisputed before the Adjudicating Authority. 8. It is further submitted that the Ld. Adjudicating Authority has wrongly cast doubts on the correctness of the information contained in Form-5 as also on the documents filed there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 take plea that there is no debt payable in law . In the present case, as we find that the invoice raised on 1st April, 2017 is more than Rupees One Lakh and a suit if filed will not be barred by limitation, the Corporate Debtor cannot take plea that the amount is barred by limitation. 11. It is further submitted that the Ld. Adjudicating Authority in the present matter passed the impugned order which is not accordance with law, so, based on these submissions the impugned order is fit to be set aside and the Appeal be allowed. 12. Despite valid service of notice the Respondent failed to appear before this Appellate Tribunal nor filed any reply, as such, paper publication was also effected. Since the service is complete, the matter has been heard i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner with that of KCCL Plastic Ltd. As such, there is no agreement between the Appellant and present Respondent. 18. 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 International Ltd. dated 05.04.2019 (supra) is not applicable in this matter. 19. 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 . 20. We have carefully examined the pleadings of the case and came to the conclusion that no interference is required in the impugned order. Hence, the impugned order dated 31.12.2020 passed by the Ld. Adjudicating Authority (National Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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