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TMI Blog2022 (9) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... of meeting dated 31 October, 2018. It is also pertinent to mention that as per the tracking record of the Petition, the delivery of the Section 8 notice was put on hold on the Addressee Instructions i.e., the Corporate Debtor. Time Limitation - HELD THAT:- It is pertinent to mention that the last bill dated 05 October, 2015 fell due on 05 November, 2015. Technically, the limitation period would end on 05 November, 2018 but since, the minutes of meeting between the parties was on 31 October, 2018, where the Corporate Debtor acknowledged the debt and assured to make the payment in four instalments. This acknowledgement of the Corporate Debtor is within the limitation period, hence, attracting section 18 of the Limitation Act, 1963. The present petition made by the Operational Creditor is complete in all respects as required by law. The Petition establishes that the Corporate Debtor is in default of a debt due and payable and that the default is more than the minimum amount stipulated under section 4 (1) of the Code, stipulated at the relevant point of time. Application admitted - moratorium declared. - C. P ( IB ) No. 82 / KB / 2020 - - - Dated:- 6-9-2022 - Shri Rohit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mlohiri Project of NCL ( Third Work Order ) in consideration of hire charges of Rs.2,75,000/- per month for the period of 24 months. [Annexure - P/6, Page 47]. 5.4 It was agreed between the parties that upon the expiry of a respective month, the Operational Creditor will raise its bills upon the Corporate Debtor and the Corporate Debtor shall clear the due by maintaining running and current accounts. 5.5 Accordingly, for the aforesaid 3 work orders, from FY 2011-2012 to FY 2015- 2016, Operational Creditor duly raised their value bills at agreed rates and terms, and the Corporate Debtor duly accepted the same and used to pay part of the dues from time to time by maintaining running and current accounts thereof. However, the last payment was made on 04 May 2017. 5.6 Thereafter, various demands were made to the Corporate Debtor to pay the dues of the Operational Creditor but the Corporate Debtor failed to clear the bills of the Operational Creditor. 5.7 However, by letter dated 08 April, 2016 the Corporate Debtor duly handed over 5 (five) cheques having an aggregate value of Rs.50,00,000/- with assurances that they will be honored upon presentation. But before the Operatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inIspat Industries Ltd. 2005 (2) Bom CR 94 After reviewing the case law, S.J. Vazifdar J. (as he then was), said: 14. The Supreme Court thereafter went on to hold that a notice which is returned as unclaimed but which was dispatched in the manner prescribed with the correct address on it is deemed to have been served. 15. The judgment would apply to a notice under Section 434(a)(1) of the Companies Act with greater force. Section 138 of the Negotiable Instruments Act entails criminal consequences, whereas Section 434(1)(a) involves only civil consequences. Moreover the requirements of a notice under Section 138 of the Negotiable Instruments Act are stricter and wider. Despite the same, the Supreme Court held that a person who properly addresses a notice and mails it would be deemed to have fulfilled his obligation of sending the notice even if the same is returned unclaimed. On a parity of reasoning, it must be held that a notice though returned unclaimed, if duly mailed by registered post addressed to the registered office of the company, must be deemed to have been delivered within the meaning of that expression in Section 434(1)(a) of the Companies Act. 16. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 05 October, 2015 fell due on 05 November, 2015. Technically, the limitation period would end on 05 November, 2018 but since, the minutes of meeting between the parties was on 31 October, 2018, where the Corporate Debtor acknowledged the debt and assured to make the payment in four instalments. This acknowledgement of the Corporate Debtor is within the limitation period, hence, attracting section 18 of the Limitation Act, 1963. 13. In view of the above facts and circumstances, we are satisfied that the present petition made by the Operational Creditor is complete in all respects as required by law. The Petition establishes that the Corporate Debtor is in default of a debt due and payable and that the default is more than the minimum amount stipulated under section 4 (1) of the Code, stipulated at the relevant point of time. Further, as envisaged under section 9(3)(b) of the Code, an affidavit has also been filed by the Operational Creditor. 14. It is, accordingly, hereby ordered as follows:- a) The application bearing CP (IB) No. 82/KB/2020 filed by Cosmos Lifters and Technical Services Private Limited, the Operational Creditor, under section 9 of the Code read with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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