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TMI Blog2022 (9) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... n was filed on 26.11.2018. Even if we do not take into consideration the disputed Debit Note dated 28.05.2015, the fact still remains that the last payment was made on 16.03.2015 whereas, the Demand Notice was sent on 04.04.2018. Having regard to the fact that the Legal Notice and the Demand Notice are within three years of the last payment made i.e., 16.03.2015, the Application is well within the limitation period. However, perusal of the material on record read together with the grounds of Appeal and the Rejoinder Affidavit, it is crystal clear that there is an admitted dispute between the parties. The Appellant themselves are admitting the existence of a dispute which is neither spurious or mere bluster. Further there is a Civil Suit O.S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case, this Bench is of the view that, it would be relevant to refer to the judgement passed by the Hon'ble Supreme Court in the matter of "B.K. Educational Services Pvt. Ltd. Vs. Parag Gupta and Associates; Civil Appeal No. 23988 of 2017 dated 11.10.2018" wherein it is observed as follows: "It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. "The right to sue", therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the goods nor provided any services to Respondent-A.S. Iron & Steel (I) Pvt. Ltd. It advanced payment of Rs. 74,32,326/- to Respondent for the supply of goods. In view of the aforesaid fact; the payment cannot be treated to be an 'Operational Debt' and the application under Section 9 filed by the Appellant was not maintainable. Accordingly, no relief can be granted." 3. It is the case of the Appellant that they had entered into Seven Sale Agreements with the Respondent-'Corporate Debtor' between 28.02.2014 to 09.04.2015 for the import and purchase of Palmolien Oil. As per the terms of the Agreement, the Appellant has paid 10 % of the contract value as advance and the same was required to be adjusted at the time of signing of the final de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Demand Notice dated 04.04.2018 was also issued, which is well within the three-year period form the last Debit Note raised. Subsequently, the Section 9 Application was filed on 15.10.2019. 5. It is submitted that the Adjudicating Authority without taking into consideration the last Debit Note, the Legal Notice issued and also the fact that three years has not lapsed between the last Debit Note and the Demand Notice under Section 8 of the Code, has erroneously dismissed the Section 9 Application. It is contended that the Debit Note dated 28.05.2015 was objected to by the 'Corporate Debtor', which led to the dispute. 6. It is the case of the Respondent that the Company Petition was barred by limitation as the alleged dates of default are 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the last payment was made on 16.03.2015 whereas, the Demand Notice was sent on 04.04.2018. Having regard to the fact that the Legal Notice and the Demand Notice are within three years of the last payment made i.e., 16.03.2015, we are of the considered view that the Application is well within the limitation period. However, perusal of the material on record read together with the grounds of Appeal and the Rejoinder Affidavit, it is crystal clear that there is an admitted dispute between the parties. At this juncture, it is pertinent to quote the statement/submission of the Appellant in the Rejoinder-Affidavit which is detailed as hereunder: "11. As far as the Debit Note dated 28.05.2015 for demurrage of USD 51472-Vessel Mt. Donga-A Rige ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application." 10. The Appellant themselves are admitting the existence of a dispute which is neither spurious or mere bluster. Further there is a Civil Suit O.S. NO. 271/2015 filed before the Additional District Judge, Kakenada for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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