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TMI Blog2020 (5) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor in oral submission are untenable and therefore rejected. The judgments cited by the Ld. Counsel for the Corporate Debtor pertain to the period prior to commencement of the IBC and involve situations where more than one court has jurisdiction. In such cases, any agreement between parties that only one of them shall have jurisdiction, shall have to be given due cognisance. However, such is not the case here, and sec 60(1) of the Code is unambiguous that it is the situs of the Registered Office of the Corporate Debtor alone that would confer jurisdiction on the NCLT - No defence has been raised by the Corporate Debtor vis- -vis the merits of the case, in spite of many opportunities given in this regard. The application made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees that was the limit stipulated under section 4(1) of the IBC at the relevant point of time. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns specified in the Quotation No.173.02.12.b dated 16.03.2012.The contract is placed as Annexure III-E (Colly) at pp.72-78.The total Contract value was 246,940.00 (for the materials) and 28,470.00 (for installation) (at para 2 pp.8-9 of the Petition). (b) As per the terms of the Contract, the schedule for delivery of the material was agreed to take place 3-4 weeks after the Corporate Debtor s approval of the Operational Creditor s design and receipt of down payment(at para 3 p.9 of the Petition) (c) The payment under the Contract for the material supplied was to be made in the following tranches as per Clause 4.1 of the Contract: (1) 20% - against order; (2) 50% - against shipping documents; (3) 10% - 60 days after material have arrived on site; and (4) 20% - 90 days after finishing installation. (at para 4 p. 9 of the Petition) (d) Likewise, the payment for installation of the Material supplied by the Operational Creditor was to be made by the Corporate Debtor as per following schedule as per clause 4.1 of the Contract: (1) 30% - Advance payment 2 weeks before planned commencement on site; (2) 60% - on fortnightly progress statement; (3) 10% - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of clause 8.2, the dispute should be referred for settlement in the court of Arbitration in Switzerland. 7. The Operational Creditor has filed its Written Submissions dated 30.08.2019, the contentions raised by the Operational Creditor are as follows: (a) As far as the factual background of the case is concerned the submissions made by the Operational Creditor broadly mirror the contents of the Petition. (b) The Operational Creditor submits that as far the question of default on part of the Corporate Debtor is concerned, the Operational Creditor has supplied and installed the materials as per the terms of the Contract and the same has been duly acknowledged by the Corporate Debtor in the provisional installation certificates issued from time to time. The Operational Creditor further states that the provisional installation certificates specifically provided that, by giving a signature, hereby we confirm that above have been completely installed and accepted for payment. The Provisional Installation Certificates are placed as Annexure III-H(Colly) at pp.97-112 of the Petition. (c) The Operational Creditor submits that the payment became due and payable upon the si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact that no reply has been filed by the Corporate Debtor. 11. The contract was submitted by the Operational Creditor dated 16.03.2012. The Taking Over Certificate filed by the Operational Creditor dated 02.03.2013. 12. Therefore, the Bench took up the issue of applicability of the Limitation Act, 1963 at the outset. 13. Section 19 of the Limitation Act, 1963 provides that where a party, on account of an outstanding debt, makes payment prior to the expiration of the prescribed period of limitation, a fresh period of limitation shall be computed from the time when the payment was made. Reliance in this regard is also placed on the judgment of the National Company Law Tribunal, Chandigarh Bench, in M/s RPG Industrial Product Private Limited V. M/s Sahil International Private Limited, CP (IB) No. 121/Chd/Pb/2018, wherein it was held that: . The last payment of ₹ 2,00,000/- was made by the respondent on 04.05.2015 as per ledger entry at page 46 of the paper book. So, on making part payments from time to time a fresh period of limitation would begin for limitation purposes. The instant petition was filed on 16.04.2018 which is well within limitation. The contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 86; (b) A.B.C Laminart Private Limited vs A.P Agencies Salem (1989) 2 SCC 163 (c) Angile Insulations vs Davy Ashmore India Limited another (1995)4 SCC 153 (d) Polycab Wires Private Limited vs ETA Engineering Private Limited 2014 SCC OnLine Bom1731 (e) Modi Entertainment Network and Anr vs W.S.G Cricket Pte. Ltd (2003) 4 SCC 341. 19. We have considered the submissions made in this regard. Firstly, the IBC s jurisdiction stems from the situs of the Registered Office of the Corporate Debtor, as per sec 60(1) of the IBC, which reads as follows:- (1) The Adjudicating Authority in relation to insolvency resolution and liquidation for corporate persons including corporate debtors and personal guarantors thereof, shall be the NCLT having territorial jurisdiction over the place where the registered office of the corporate person is located. 20. The IBC is a complete Code in its itself, and sec 60(1) thereof is not subject to contract between parties so as to dispossess this Bench of its territorial jurisdiction. Therefore, the objections raised in this behalf by the Corporate Debtor in oral submission are untenable and therefore rejected. The judgments cited by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; (iii) Any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002; (iv) The recovery of any property by an owner or lessor where such property is occupied by or in possession of the Corporate Debtor. (c) Notwithstanding the above, during the period of moratorium,- (i) The supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period; (ii) That the provisions of sub-section (1) of section 14 of the IBC shall not apply to such transactions as may be notified by the Central Government in consultation with any sectoral regulator; (d) The moratorium shall have effect from the date of this order till the completion of the CIRP or until this Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 of the IBC or passes an order for liquidation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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