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TMI Blog2022 (3) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... tiate the Corporate Insolvency Resolution Process against M/s. Nikhil Footwears Pvt. Ltd., (hereinafter, Respondent/Corporate Debtor). 2. As per averments made in the petition, the Operational Creditor is a Company incorporated under the Companies Act, 1956 in the year 2008. The Operational Creditor is engaged in the business of manufacturing of footwears etc. The Corporate Debtor during the normal course of dealings and for the requirement of raw material for the goods manufactured by the Corporate Debtor had approached Operational Creditor from time to time to place verbal purchase orders of rubber chemicals, synthetic rubber and carbon etc. The Corporate Debtor has been demanding goods from the Operational Creditor on credit basis for w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he admission of the present petition: a) It is alleged that the amount claimed by the applicant is time barred in accordance with the provision of Section 238A of the Code. As the period of more than 3 years stands lapsed from the date of the invoice mentioned by the Applicant i.e. 2013-2015. The corporate debtor argued that since the said petition has been filed clearly after the expiration of the period of 3 years from the date when the right to sue occurs, the instant petition is legally untenable. b) Corporate Debtor also stated that the instant application is not in accordance with the provisions of the IBC as certified under Section 9(3)(C) of IBC, 2016 i.e. that the applicant failed to annex a copy of the certificate from the fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir contention that the claim of the applicant is barred by limitation. 10. We have heard Ld. Counsel for the parties. We have perused the averments made in the application, reply, rejoinder and written submission filed by the parties. 11. On a perusal of the settlement agreement it is revealed that the respondent corporate debtor has itself gave no objection to initiation of the proceeding before this adjudicating authority. The relevant clauses of the agreement has been reproduced below: "6. Insolvency petition IB (ND) 520/2017 is revived or refilled against the NFPL as the memorandum of settlement will be filed before the Hon'ble National Company Law Tribunal. 7. That as promised, assured and undertaken by the NFPL that all th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made." 14. In the present case also the applicant has acted upon the promise of the respondent corporate debtor and withdrew the earlier petition. The respondent itself made promise and therefore is now estopped from raising objection against the present petition. The order in the matter of Brand Reality Services Ltd. Vs. Sir John Bakeries India Pvt. Ltd. in IB No. 1677/ND/2019, as relied by the respondent corporate debtor is not applicable in the present matter, as the respondent settled the matter before this Tribunal after filing of the earlier petition and the corporate debtor itself by virtue of an agreement stands estopped from objecting the further initiation of proceeding under the Code by applicant. On the other hand in the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y proceedings are pending against him. The specific consent is required to be filed in Form 2 of Insolvency and Bankruptcy Board of India (Application to Adjudicating Authority) Rule, 2016 and made disclosures as required under IBBI (insolvency Resolution Process for Corporate Persons) Regulations, 2016. 18. We direct the applicant to deposit a sum of Rs. 2 lacs with the Interim Resolution Professional namely, Mr. Rahul Jain to meet out the expense to perform the functions assigned to him in accordance with regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within one week from the date of receipt of this order by the Operational Credito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by or in the possession of the corporate debtor." 21. It is made clear that the provisions of moratorium shall not apply to transactions which might be notified by the Central Government or the supply of the essential goods or services to the Corporate Debtor as may be specified, are net to be terminated or suspended or interrupted during the moratorium period. In addition, as per the Insolvency and Bankruptcy Code (Amendment) Act, 2018 which has come into force w.e.f. 06.06.2018, the provisions of moratorium shall not apply to the surety in a contract of guarantee to the corporate debtor in terms of Section 14(3)(b) of the Code. 22. The Interim Resolution Professional shall perform all his functions contemplated, inter-alia, by Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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