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TMI Blog2022 (9) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... solvency and Bankruptcy Code, 2016 (the Code) by Udit Sirohia on behalf of HTC Impex Private Limited, (Operational Creditor), seeking to initiate Corporate Insolvency Resolution Process ("CIRP") against Santipara Tea Co. Limited ("Corporate Debtor"). 3. The Corporate Debtor is a public company incorporated on 28.04.1995. The nominal share- capital of the company is Rs.10,00,00,000/- and the paid-up share- capital of the company is Rs.97,44,000/-. 4. The total amount claimed by the Operational Creditor is Rs.7,24,530/- plus interest @14% from the last date of payment and the date of default is not mentioned in the petition. The Demand notice under section 8 of the Code was issued by the Operational Creditor on 03.12.2019. No reply was sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd continuous one. 5.7 The Corporate Debtor has by a letter dated 09.03.2015 also confirmed the amount of Rs.7,24,530/-, the principal sum as being due and payable by it. 5.8 The Operational Creditor had within the period of limitation filed a winding up proceedings under section 434 of the Companies Act, 1956 before the Hon'ble High Court at Calcutta being C.P. No. 161 of 2016 in which by an order dated 29.03.2016. Hon'ble Justice Biswanath Somadder had in view of the Tea Act, 1953 and the notification dated 28.01.2016 disposed of the winding up petition with liberty to the petitioner therein to take necessary steps in accordance with law. The issue of the Tea Act, 1953 has been decided on 04.10.2019. As such, the limitation which starte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no consequence. 7 Rejoinder on behalf of the Operational Creditor: 7.1 The Operational Creditor has reiterated that the winding up petition in 2016 was within time. The notification dated 28th January 2016 under section 16E of the Tea Act 1953 in connection with the tea unit of the Corporate Debtor in light of which and the relevant provisions of the Chapter III - A of the Tea Act, 1953, no suit or legal proceeding was maintainable and institution of any such legal proceedings would amount to abuse of process of law as such the winding up application was disposed. The issue of applicability of Tea Act on applications filed under the Code having been decided by the Hon'ble Supreme Court in October, 2019, enlarged the period of limitation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendering the instant petition incomplete. 8.4 The main defence taken by the Corporate Debtor is that the instant petition is barred by limitation. The Operational Creditor has rebutted the said contention by pointing out that the limitation period will be extended under sections 14 and 18 of the Limitation Act, 1963. In this regard, the Operational Creditor has highlighted the following facts: a. The Corporate Debtor has acknowledged the debt vide letter dated 09.03.2015; b. A winding up petition was filed by the Operational Creditor in February 2016, which was dismissed on 29.03.2016 in light of the notification dated 28.01.2016 issued by the Ministry of Commerce and Industry, Govt. of India. c. The requirement of the prior consent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.2019. During the period from May 2018 to 04.10.2019, the Operational Creditor had ample time to institute proceedings under the code with prior consent of the Central Government. During this period, under section 16M of the Tea Act 1953, filing of legal proceedings was allowed, albeit with prior consent of the Government. As such, the Operational Creditor's claim that the limitation period would stop running from the date of filing of the winding up proceedings till the Hon'ble Supreme Court's decision on 04.10.2019 and resume thereafter is untenable. The limitation period in the instant case would resume from 29.03.2016 and would have been extinguished by May 2018. The proceedings under section 9 of the Code, however, were filed on 31.12 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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