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TMI Blog2022 (7) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (1) of the Section 16(E) of the Tea Act 1953 (29 of 1953) and under provisions of the Chapter-IIIA of the Tea Act 1953 (29 of 1953) - The Operational Creditor has claimed that pursuant to the provisions of Chapter IIIA of the Tea Act 1953, no proceedings for winding up or for the appointment of receiver is maintainable. As such the Operational Creditor could not take any steps or file any suit or application for winding up or under Section 9 of the Insolvency and Bankruptcy Code, 2016 before the appropriate forum and the recovery of the said outstanding dues was stalled. Section 16M of the Tea Act, 1953 which provides that no suit or other legal proceedings shall be instituted or continued against a tea undertaking or tea unit in respect of which an order has been made under Sections 16D or 16E, except with the previous permission of the Central Government or of any officer authorised by the Government in this purpose - under section 16G of the Tea Act, 1953, where management or a tea undertaking or tea unit owned by a company is taken over by any person or body of persons authorised by the Central Government under the said Act, then, notwithstanding anything contained in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars on continuous account at the request of the Corporate Debtor. Submissions on behalf of the Operational Creditor in CP (IB) 2185/KB/2019: 3. The case of the Operational Creditor is that the total amount of debt due on unpaid bills is ₹74,26,732/- (Rupees Seventy Four Lakh Twenty Six Thousand Seven Hundred Thirty Two Only) consisting of a principal amount of ₹48,33,539/- (Rupees Forty Eight Lakh Thirty Three thousand Five Hundred Thirty Nine Only) and interest @ 18% per annum calculated from 31 December 2015, amounting to ₹25,93,193.67 (Rupees Twenty Five Lakh Ninety Three Thousand One Hundred Ninety Three and Paise Sixty Seven) as on 05 December 2018 plus further interest in accordance with law. The date of default is 31 December 2015. Submissions on behalf of the Corporate Debtor in CP(IB) 2185/KB/2019: 4. The Corporate Debtor submits that the said application has been affirmed by an alleged constituted attorney of the Operational Creditor. The law as settled by the Hon ble NCLAT on the subject provides that a power of attorney holder is not a proper authority to initiate insolvency proceedings. Moreover, the purported power of attorney has also no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is based on several separate and distinct purchase orders which have been deliberately not been annexed to the instant application. It is a settled proposition of law that separate purchase orders cannot be clubbed together in one petition under section 9 of the Code as the cause of action arising out of the said purchase orders is separate and distinct in each case. 10. Further, there is pre-existence of disputes between the parties. The Corporate Debtor has raised disputes much prior to the issue of the purported demand notice. Suh disputes were raised by the Corporate Debtor in various forums. The Operational Creditor is therefore guilty of misleading the Adjudicating Authority by making false statement on oath. 11. Furthermore, no affidavit under sections 9(3)(b) and 9(3)(c) of the Code has been filed by the Operational Creditor. The said affidavit is mandatory in nature and thus the present petition is liable to be dismissed on such ground. The affidavit annexed to the petition as Annexure IV is in respect of one Bengal Water proof Ltd. and not the Corporate Debtor. Although the purported certificate from the bank proceeds to certify that not payment has been received a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Insolvency and Bankruptcy Code, 2016 the Operational Creditor raised a demand notice to the Corporate Debtor vide its letter dated 18 December 2018 for payment of their outstanding dues of ₹74,26,732/- as on 05 December 2018 but the Corporate Debtor failed to make any payment. On the contrary, the Corporate Debtor through their Advocate Anit Kumar Bandapadhyay vide his letter dated 10.01.2019 issued a reply to the said Demand Notice and denied all these outstanding amount of dues in view of the said embargo issued pursuant to the Notification dated 28 January 2016 under Section 16(E) of the Tea Act 1953 in connection with the Tea Unit of the Company. 18. Thereafter the Learned Counsel for the Operational Creditor issued a counter reply to their reply dated 22 April 2019 denying all these allegations and replied that in view of the said Division Bench order and the Single Bench order there is no embargo for initiation of the Insolvency and Bankruptcy Code, 2016 and further requested them to pay the said amount to his client. 19. There is another case which was pending before the Hon ble Supreme Court of India vide their judgment and order dated 4th October, 2019 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of period of limitation in filing the above application under section 9 of IBC 2016 as such the above application is within the period of limitation. 24. The Operational Creditor has filed the above application under section 9 of the Insolvency and Bankruptcy Act, 2016 before the Adjudicating Authority, bearing 2185/K13/2019 with one another application for condonation of delay. Thereafter it is decided that it is field without proper appreciation of law, with many mistakes, as such the applicant humbly prays leave for not to press the said application. The applicant further praying leave to accept this application and to allow the prayer made herein for exclusion of time in computing period of limitation in filling this application under section 9 of IBC 2016. 25. The Operational Creditor therefore seeks for exclusion of the period of 536 days or any other days if any in filing of the petition bearing CP(IB) No. 2185/KB/2019 in computation of the period of limitation under the Limitation Act, 1963. Submissions on behalf of the Corporate Debtor in IA 17/KB/2022: 26. The pleadings in the main company petition are, therefore, complete and as such the instant applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged unpaid bills as on 31.12.2015 or due amount of interest of the sum of Rs.25,93,193.67 calculated as on 31.12.'2015 at 18% per annum or that in spite of several demand the said outstanding bills were not paid by the Corporate Debtor. It is denied that the petitioner could not take any steps or file any suit or application for winding up or under Section 9 of the Insolvency and Bankruptcy Code, 2016 before the appropriate forum or that the recovery of the said alleged outstanding dues was stalled. The Operational Creditor has itself admitted that the last payment was made by the Corporate Debtor on 7th May 2015 and as such the alleged dues of the Operational Creditor as on the date of filing of the said company petition are barred by the laws of limitation. 30. The Hon'ble Apex Court in the said Civil Appeal No. 5120 of 2019 has held that the Insolvency and Bankruptcy Code, 2016 overrides the Tea Act, 1953. The Notification dated 28th January 2016 did not create any embargo in filing any application under the Insolvency and Bankruptcy. Code, 2016. Under Section 16G of the Tea Act, 1953 where management or a tea undertaking or tea unit owned by a company is taken ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interlocutory application on the Notification dated 28 January 2016 vide S.O.No.260(E) issued by Additional Secretary, Ministry of Commerce and Industries, Department of Commerce, New Delhi, whereby the Central Government has taken over the management or the control of the Demdima Tea Estates and six other tea gardens, in exercise of their powers conferred by sub-section (1) of the Section 16(E) of the Tea Act 1953 (29 of 1953) and under provisions of the Chapter-IIIA of the Tea Act 1953 (29 of 1953). 35. The Operational Creditor has claimed that pursuant to the provisions of Chapter IIIA of the Tea. Act 1953, no proceedings for winding up or for the appointment of receiver is maintainable. As such the Operational Creditor could not take any steps or file any suit or application for winding up or under Section 9 of the Insolvency and Bankruptcy Code, 2016 before the appropriate forum and the recovery of the said outstanding dues was stalled. 36. In this regard, we refer to section 16M of the Tea Act, 1953 which provides that no suit or other legal proceedings shall be instituted or continued against a tea undertaking or tea unit in respect of which an order has been made unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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