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TMI Blog2022 (8) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... that he supplied CRGO Lamination for transformers to Respondent (M/s. PME Power Solutions (India) Ltd.) through purchase orders during the period between years 2015 to 2016 and invoices were issued between 13.8.2015 to 13.3.2016 by the Appellant for payment. The Appellant has further claimed that the Respondent did not make payment against the said invoices and a debit note was issued on 31.3.2016 regarding interest on delayed and outstanding payments of Financial Year 2015-16 for a sum of Rs.12,44,250. Since these payments were not made to the Appellant, he sent an e-mail dated 1.6.2016, wherein a total amount of Rs.1,69,49,767 was mentioned as overdue payment. Further, the Appellant issued a demand notice dated 13.11.2017 under section 8 of the IBC, which contained a total due debt amount of Rs.1,68,76,753. He has further stated that the Respondent did not respond to the demand notice under section 8, and thereafter he filed section 9 application bearing CP No. 1743/ND/2018 before the Adjudicating Authority, for a total debt of Rs.1,68,76,753 for supply of CRGO Lamination during the period February, 2015 to March, 2016, which fell due for payment and is in default. 3. The Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The Learned Counsel for Respondent has further argued that the corporate debtor had on-going business dealing with the operational creditor and he was issuing purchase orders for CRGO Laminations and arranging letters of credit for the same, as is evident by his e-mails dated 13.4.2015, 18.4.2015 and 7.5.2015 (attached at pp.127-128 of the appeal paperbook). He has argued that an e-mail dated 7.5.2015 was sent by the operational creditor to the corporate debtor, which was replied to on the same day by the corporate debtor assuring "to clear all previous outstanding dues within the coming week". He has further submitted that since the corporate debtor did not make payment of the outstanding amount, an e-mail dated 1.6.2016 was sent to the corporate debtor, wherein the pending invoices for payment and the debit note for the interest amount were mentioned (attached at pp. 125-126 of appeal paperbook). He has also submitted that one particular debit note of an amount Rs. 12,44,250, which was issued on 31.1.2016 is included in e-mail dated 1.6.2016 and which also appears in the debit note which is included as an entry dated 31.3.2016 in the ledger account for the period 1.4.2012 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the order of Hon'ble Madhya Pradesh High Court in the matter of Madhya Pradesh Grih Nirman Mandal vs. Kamala Devi [MANU/MP/0585/2007] wherein it is held that an opportunity should be afforded to the party to file an application of condonation of delay under section 5 of the Limitation Act in case the application is found to be barred by limitation. 10. The Learned Counsel for Respondent/Corporate Debtor has argued that as per the demand notice under section 8, the date on which debt fell due for payment is considered as 30.4.2015. Therefore, the three year period of limitation expired on 29.4.2018, whereas the section 9 application was filed on 4.12.2018, after a delay of more than seven months from the date of expiry of limitation period. He has, further, contended that it was the responsibility of the operational creditor to file the application under section 5 of the Limitation act for condonation of delay and no fault can be found with the Adjudicating Authority if such an opportunity was not given to the operational creditor. He has further argued that the debit note dated 31.3.2016 is shown only to claim extended period for limitation so as to get the applicant's applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .12.2018, which is more than three years after the date of default and, hence, the application under section 9 has been adjudicated by the Adjudicating Authority as being barred by limitation. In addition, the Adjudicating Authority has also held "that the debit note which has been raised on 31.3.2016 and which has been incorporated in the ledger account has been made for the purpose of these proceedings and which clearly shows that this Petition is time barred and obviously filed beyond the period of limitation. In view of the claim being time-barred, this Petition is dismissed, however, without costs." 14. The main question that arises in this appeal is regarding the date of default, which as claimed by the Appellant is 1.6.2016 i.e. the date on which the operational creditor sent an e-mail to the corporate debtor reminding him of the overdue payments and the e-mail was not replied to by the corporate debtor leading to adverse inference against the corporate debtor regarding the outstanding payment and therefore 'deemed acknowledgment' of the debt, whereas the Respondent has claimed the date of last payment i.e. 4.9.2015 as the date of default. 15. We note that in Part IV of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved by an operational creditor to the corporate debtor demanding payment of the operational debt in respect of which the default has occurred." 17. We note the judgments of Hon'ble Delhi High Court in the matter of Krishan Kumar Aggarwal & Ors. vs. Life Insurance Corporation of India (supra) and the Hon'ble High Court of Madhya Pradesh in the matter of Madhya Pradesh Grih Nirman Mandal vs. Kamala Devi (supra), wherein it is held that an opportunity should be afforded to the petitioner/appellant in case the application is found to be barred by limitation. We also note that, in the instant case, the appellant did not file an application for condonation of delay, nor did he made any request to file the same. 18. With regard to acknowledgment of operational debt, section 18 of the Limitation Act which relates to effect of acknowledgment in writing is as follows:- "18. Effect of acknowledgment in writing - (1) Where before the expiration of the prescribed period for a suit or application in respect or any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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