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TMI Blog2022 (6) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... ntment of Interim Resolution Professional as prescribed under the Code and Rules thereon. 2. The averments made in the petition are as follows: (i) The Corporate Debtor approached the Operational Creditor for supply of readymade garments. The Operational Creditor supplied the same during 11.06.2015 to 06.08.2015. The Corporate Debtor received the goods. The Operational Creditor received invoices on the Corporate Debtor and the same were accepted by the Corporate Debtor without objection. (ii) The Corporate Debtor paid Rs. 2 lacs and failed to make remainder of Rs. 24,75,740/-, for which a cheque dated 24.02.2016 (page 81 and page 95 of the petition) was issued. The cheque got dishonoured when presented. (iii) The Operational Creditor filed a petition under section 138 of the Negotiable Instruments Act, 1881. The Operational Creditor has not stated about its status or outcome. (iv) The Operational Creditor issued Demand Notice dated 19.06.2019 in Form-3 by Registered Post AD. It was delivered on the Corporate Debtor. 3. The respondent-corporate debtor has filed counter dated 18.11.2020, and Written Arguments dated 19.04.2022, the contentions of which are summarised hereund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipment Finance Ltd. Vs. Rajeev Anand & others in Civil Appeal No. 9425 of 2019, and decision of the Hon'ble NCLAT in Rupesh Kumar Gupta Vs. PNB & another in Company Appeal (AT) (Insolvency) No. 1119 of 2019. 5. In the light of the contest as mentioned above, the following point is framed for consideration by this Adjudicating Authority: POINT FRAMED: * Whether the documentary evidence furnished with application shows that the aforesaid debt is due and payable and has not yet been paid by the Corporate Debtor? 6. We have heard Shri Y. Suryanarayana, learned counsel assisted by Shri Sachin Sharma, learned counsel for the Operational Creditor and Shri K.V. Raman, learned counsel for the Corporate Debtor. Perused the counter, rejoinder, written submissions and the case laws cited by the parties. 7. According to the learned counsel for the Operational Creditor, the Operational Creditor had supplied garments to the Corporate Debtor under various invoices during the period between 11.06.2015 to 06.08.2015, in all valued at Rs. 24,75,740/-, as ordered by the Corporate Debtor. The goods were duly delivered through Patel Carriers Private Limited, to the Corporate Debtor, which were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel invited attention the Tribunal to the pleadings of the Corporate Debtor made before the Hon'ble High Court of Calcutta, wherein he has stated that: "6. Your petitioners state that the petitioners in course of business had procured certain goods from the opposite part (sic., party) in respect of which a cheque amount to Rs. 24,75,740/- was handed over to the opposite party." Therefore, according to the learned counsel the said statement amounts to acknowledgement of debt and therefore, fresh period of limitation of three years accrued in favour of the applicant, effective from 10.01.2017, the date on which the said acknowledgement of debt was made. The present suit since filed on 02.12.2019 is therefore, well within the period of limitation. 9. Per contra, the learned counsel for the Corporate Debtor submitted that there is no operational debt as claimed by the applicant and the subject cheque was not issued in discharge of any operational debt between the Corporate Debtor and the Operational Creditor. According to the learned counsel the said cheque was issued to the agent of the applicant as security for the supply of garments and not towards discharge of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he last consignment was delivered on 26.02.2016. (b) Cheque bearing No. 345098 was issued on 24.02.2016 in partial discharge of the operational debt. (c) In the pleadings before the Hon'ble High Court of Calcutta, the Corporate Debtor stated as under: "6. Your petitioners state that the petitioners in course of business had procured certain goods from the opposite part (sic., party) in respect of which a cheque amount to Rs. 24,75,740/- was handed over to the opposite party." 12. This statement of the Corporate Debtor, as rightly contended by the learned counsel for the Operational Creditor amounts to acknowledgement of debt within the meaning of section 18 of the Limitation Act. The learned counsel also placed reliance on the ruling of the Hon'ble Supreme Court of India in decision dated 08.09.2020 of the Hon'ble Supreme Court in SREI Equipment Finance Ltd. Vs. Rajeev Anand & others in Civil Appeal No. 9425 of 2019, wherein the Hon'ble Supreme Court upheld the order of the NCLT in the following words: "8. For all these reasons, we set aside the NCLAT order and restore that of the NCLT. The resolution proceedings will continue from the stage at which they w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, clearances or a similar grant or right during the moratorium period. (E) That the provisions of sub-section (1) of Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (F) That the order of moratorium shall have effect from the date of this order till the completion of the Corporate Insolvency Resolution Process or until this Bench approves the Resolution Plan under Sub-Section (1) of Section 31 or passes an order for liquidation of Corporate Debtor under Section 33, whichever is earlier. (G) That the public announcement of the initiation of Corporate Insolvency Resolution Process shall be made immediately as prescribed under section 13 of Insolvency and Bankruptcy Code, 2016. (H) That this Bench hereby appoints Shri Bhupatipalli Vijaya Kumar, having IBBI Registration No. IBBI/IPA-001/IP-P01645/2019-2020/12579, email: [email protected] having address at: 6-62/1, Sri Shailaja Nivas, Bhavani Nagar, Dilsukh Nagar, Telangana, 500060, as Interim Resolution Professional to carry the functions as mentioned under the Insolvency & Bankruptcy Code. His Authorisation for Assignment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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