9911796707
TMI Blog2022 (2) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... "CIRP") against the Corporate Debtor namely M/s. Naumee Ceramica India Limited. The amount of debt claimed in default is Rs. 1,47,39,391/- (Rupees One Crore Forty Seven Lakh Thirty Nine Thousand Three Hundred and Ninety One Only) including interest @18% per annum as on 31.01.2020. 2. The facts, in brief, are that the Operational Creditor was engaged in the business of non-metallic mineral products, whereas the Corporate Debtor is a Public Limited Company incorporated under Companies Act, 1956 and is carrying out the business of manufacturing of non-refractory tiles and related products. On demand by the Corporate Debtor the Operational Creditor rendered its services and supplied the required products as demanded by the Corporate Debtor. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r failed to pay the due amount even after number of reminders and request, thereupon, the Operational Creditor issued a demand notice dated 19.02.2019 in the prescribed form No. 3 and 4 as per section 8 of IB Code, 2016 r.w. Rule 5 of Insolvency and Bankruptcy (Application to the Adjudicating Authority) Rules, 2016 (hereinafter referred to as "AA Rules"). The Corporate Debtor neither replied to the demand notice nor paid the default amount as claimed under aforesaid demand notice. 6. The Corporate Debtor appeared before this Authority and filed its reply to the present petition, and denied the averments made by the Operational Creditor. The Corporate Debtor has submitted that the demand notice dated 19.02.2019 issued by the advocate on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Debtor for the amount of Rs. 50,00,000/- (Rupees Fifty Lakh Only). The Corporate Debtor has stated that the amount of Rs. 3,50,000/- (Rupees Three Lakh Fifty Thousand Only) was paid to the Operational Creditor against the compromise of criminal complaint No. 906 of 2016 filed by the Operational Creditor under the Negotiable Instrument Act, 1881 before the Court of Judicial Magistrate Kadi and not in lieu of the alleged default amount. 9. We have heard learned counsels for the Operational Creditor and Corporate Debtor and have gone through the record. It is an undisputed fact that the goods were supplied to the Corporate Debtor and invoices were raised against the Corporate Debtor. It is also noted that the Corporate Debtor has confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation Act, 1963 hereunder: 18. Effect of acknowledgment in writing - (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt; (b) "debt" does not include money payable under a decree or order of a court. 11. In view of aforesaid provisions, the payment of Rs. 3,50,0000- made by the Corporate Debtor on 28.05.2019 to the Operational Creditor is beyond the prescribed period of limitation. Section 19 of Limitation Act, 1963 states that the period of limitation shall be computed from the date of payment in case the payment of debt or interest is made before the expiry of the prescribed period. Sub-section (j) of Section 2 of the Limitation Act, 1963 states that the "period of limitation" means period of limitation prescribe for any suit or appeal or application by the schedule and computed as per the provision of the Act. For ready reference we reproduce sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f invoice is 24.04.2012. The acknowledgment was made on 01.04.2014 which extended the Limitation till 01.04.2017. Thereafter the payment of Rs. 3,50,000/- (Rupees Three Lakh Fifty Thousand Only) was made on 28.05.2019, which is beyond the period of three years, hence, Section 18 and 19 are not applicable in the present case. 14. We have also observed that for filing the application under Section 9 of IB Code, 2016 the delivery of demand notice is mandatory. The proof of delivery of the said notice is not on record. The present application is not within the period of Limitation as per the applicable provision of the Limitation Act, 1963. 15. We reject the present petition as it is not maintainable being barred by limitation and also for wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
