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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 ..... en paid on the goods supplied - there exists an operational debt of a sum of Rs. 24,75,740/- due and payable by the Corporate Debtor to the Operational Creditor and the same was defaulted by the Corporate Debtor. Time limitation - HELD THAT:- The acknowledgement of debt is within the meaning of section 18 of the Limitation Act. The applicant had established operational debt due and payable by the Corporate Debtor and the Corporate Debtor has defaulted in repayment of the same. Therefore, it is a fit case to put the Corporate Debtor under CIRP - petition admitted - moratorium declared. - CP (IB) No. 771/9/HDB/2019 - - - Dated:- 13-5-2022 - Dr. Venkata Ramakrishna Badrinath Nandula, Member (J) And Veera Brahma Rao Arekapudi, Member (T) For the Appellant : Sachin Sharma, Advocate For the Respondents : K.V. Raman, Advocate ORDER 1. This petition is filed by M/s. Manish Fashionworld Private Ltd/Operational Creditor, stating that the following amount is due and payable as on 14.06.2019 by the Corporate Debtor: Principal amount -- Rs. 24,75,740 Interest amount -- Rs. 23,18,644 TOTAL -- Rs. 47,94,384 (Rupees forty seven lacs ninety f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... z. prior to the alleged supply of goods on 08.08.2015 as security for a different transaction. It is a case of misuse of cheque. (vi) The Operational Creditor has made material alterations on the cheque. (vii) The petition is barred by limitation under Section 238A of the Code and Article 137 of the Limitation Act, 1963. (viii) The Corporate Debtor states that proceedings under section 138 are still on and Corporate Debtor is contesting the same. (ix) The Corporate Debtor relied on case laws in M/s. Shruti Impex Vs. NR Commercials Pvt. Ltd. - CA (AT) (Ins) No. 566 of 2020 - Hon'ble NCLAT; Ramco Systems Ltd. Vs. Spicejet Ltd. - CA (AT) No. 31 of 2018 - Hon'ble NCLAT; and CVS Infrastructure Pvt. Ltd. Vs. Maari Multi Trading Pvt. Ltd. - CP (IB) No. 1764/MB//C-V/2018- NCLAT, Mumbai. Said case laws were cited to lay emphasis that the Operational Creditor has not established supply of goods and has not made out case under section 9 of the I B Code, 2016. 4. The Operational Creditor has filed Rejoinder dated 23.03.2021 and Written Submissions dated 18.04.2022 contending that: (i) On the point of limitation the Operational Creditor there was acknowledgem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Negotiable Instruments Act before a competent court at Alipore, Kolkata. The Operational Creditor also got issued Demand Notice dated 19.06.2019 calling upon the Corporate Debtor to pay the then outstanding amount of Rs. 47,94,384/-. The Corporate Debtor having received the said Demand Notice not only failed to discharge the operational debt but also raised false and baseless contentions. 8. Insofar as the plea of limitation put forth by the Corporate Debtor is concerned, learned counsel for the Operational Creditor would submit that, the operational debt as claimed is well within the period of limitation. In support of this plea the learned counsel submitted that the last supply was made on 26.02.2016, and as per the terms of invoice the same was payable within 30 days from the date of receipt of the goods. It is stated that since the Corporate Debtor had issued a cheque bearing No. 345098 dated 24.02.2016 in partial discharge of the outstanding amount the same amounts to acknowledgement of debt within the meaning of section 18 of the Limitation Act. Thus, a fresh period of limitation of three years has accrued effective from 24.02.2016. Learned counsel further submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant had supplied garments to the Corporate Debtor for the value mentioned therein. The plea of the Corporate Debtor that it had not received supplies from the Operational Creditor cannot be accepted for the reason that the invoices contained TIN number of the Corporate Debtor besides GST has been paid on the goods supplied. That apart the ledger account of the Corporate Debtor has not been disputed by the Corporate Debtor. Insofar as issuance of cheque bearing No. 345098 dated 24.02.2016 drawn on Indian Overseas Bank in partial discharge of liability is concerned the plea of the Corporate Debtor that it was issued through the agent of the Operational Creditor, is not only unsubstantiated but the said plea is contrary to the own admission made by the Corporate Debtor in the pleadings filed before the Hon'ble High Court of Calcutta challenging the action initiated by the Operational Creditor against the Corporate Debtor under the Negotiable Instruments Act. Moreover, in reply to the Demand Notice there is no specific denial of these documents, viz. invoices, delivery challans and ledger. So much so we are fully satisfied that there exists an operational debt of a sum of Rs. 24,7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in Corporate Insolvency Resolution Process under section 9 of the Insolvency Bankruptcy Code, 2016. (B) The Bench hereby prohibits the institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgment, decree or order in any court of law, Tribunal, arbitration panel or other authority; transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); the recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate Debtor; (C) That the supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. (D) Notwithstanding anything contained in any other law for the time being in force, a license, permit, registrat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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