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TMI Blog2022 (7) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... ,20,575/-, and the same was delivered to the Corporate Debtor on 09.04.2019. The Corporate Debtor replied to the said demand notice on 20.05.2019 and raised a pre-existing dispute with respect to the service and goods supplied. This application is filed on the basis of the award passed by the Hon'ble MSME Council on 20.02.2016. In the present matter, the moot question is whether the award passed on 20.02.2016 by the MSME Council is within the period of limitation or not? It is settled law that Article 137 Schedule- I of the Limitation Act, 1963 would be applicable in the application filed under section 7 or 9 of the IB Code. The aforesaid Article provides 3 years limitation period for filing an application from the date when the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing no. PO/FCT/PROC/0076/10-11 dated 29.04.2010 (first purchase order) for an amount of Rs. 11,25,060/-, PO/FCT/PROC/0078/10-11 (second purchase order) dated 30.04.2010 of Rs. 3,53,26,884/- and PO/FCT/PROC/00359/10-11 (third purchase order) dated 15.09.2010 of Rs. 60,87,770/-. (ii) The Operational Creditor supplied the goods to the Corporate Debtor and raised an invoice of Rs. 11,25,060/- against the first purchase order, raised twelve invoices of Rs. 3,53,26,884/- against the second purchase order, and raised five invoices of Rs. 60,87,700/- against the third purchase order. (iii) The Corporate Debtor made a payment of Rs. 9,56,301/- out of the total amount of Rs. 11,25,060/- for the invoice raised against the first purchase o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the interest totaling Rs. 1,27,49,033/- and further interest with monthly rest at three times bank rate prevailing as on date of this award as notified by RBI on the amount adjudicated in terms of section 16 of APMSMED Act, 2006 till such date the Corporate Debtor makes the full and final payment. Thereafter, the Operational Creditor served the copy of the said award to the Corporate Debtor. But, the Corporate Debtor failed to make the payment of the amount as directed by the Hon'ble MSME Council. (vi) The Operational Creditor in the compelling circumstances sent a demand notice dated 26.03.2019 to the registered address of the Corporate Debtor, the address available on the website of the Ministry of Corporate Affairs. However ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e MSME Council and submitted as under; (i) As per section 34 of the Arbitration and Conciliation Act, 1996, an application for setting aside the arbitration award may not be made after three months from the date of receiving the award and a further three months may be granted at the discretion of the court. Section 36 (1) of the Arbitration and Conciliation Act, 1996 states that where the time for making an application to set aside the arbitral award under section 34 has expired, then subject to the provision of sub-section (2), such award shall be enforced. Hence, the order dated 20.02.2016 of the Hon'ble MSME Council has reached its finality as no appeal against the said order has been preferred till date, and there is no pre-exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard, the limitation period expired on 20.02.2019. (ii) The Operational Creditor has made a frivolous attempt to bring the application within the period of limitation by invoking Article 136 of Schedule-I of the Limitation Act, 1963. However, the aforesaid Article applies in the matter of execution proceedings of a decree. This application is not an execution proceeding but an insolvency application to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor. Hence, the period of 3 years would be applicable as per Article 137 Schedule-I instead of 12 years period under Article 136 Schedule I of the Limitation Act, 1963. (iii) The award of the Hon'ble MSME Council dated 20.02.2016 does not inspire any co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied to the said demand notice on 20.05.2019 and raised a pre-existing dispute with respect to the service and goods supplied. 7. This application is filed on the basis of the award passed by the Hon'ble MSME Council on 20.02.2016. In the present matter, the moot question is whether the award passed on 20.02.2016 by the MSME Council is within the period of limitation or not? It is settled law that Article 137 Schedule- I of the Limitation Act, 1963 would be applicable in the application filed under section 7 or 9 of the IB Code. The aforesaid Article provides 3 years limitation period for filing an application from the date when the right accrues. The arbitration award was passed on 20.02.2016 and the present application was filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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