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TMI Blog2022 (12) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... before the receipt of such notice or invoice in relation to such dispute. As per the above position of law the dispute must be specific with regard to the same amount. In that present case, the Respondent failed to raise any dispute prior to issue of demand notice and claim of set off is only an afterthought. Accordingly, the issue is answered. Whether the claim is barred by limitation - maintaining the pecuniary jurisdiction to entertain the claim - HELD THAT:- The Adjudicating Authority taken a stand that out of 13 invoices claimed by the Appellant 11 invoices are time barred i.e. the last invoice dated 23.08.2016 and the Application under Section 9 was filed on 26.08.2019, therefore, it is beyond 3 years as per Section 137 of the Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and raising of invoices was delayed by the Corporate Debtor, is absurd and without any basis. This Tribunal comes to an irresistible and inescapable conclusion that the order passed by the Adjudicating Authority is per-se illegal and the same is hereby set aside. The Company Appeal is allowed with a direction to the Adjudicating Authority to admit the application and initiate Corporate Insolvency Resolution Process (CIRP) proceeding against the Respondent / Corporate Debtor. - Company Appeal (AT)(Insolvency) No. 792 of 2022 - - - Dated:- 20-12-2022 - [Justice Ashok Bhushan] Chairperson , [Mr. Kanthi Narahari] Member (Technical) And [Mr. Barun Mitra] Member (Technical) For the Appellant : Mr. Rajendra K. Golani, Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 65,20,061/-. 4. The Learned Counsel further submitted that the Respondent vide its reply dated 08.08.2019 raised false and frivolous claims to avoid payment of debt due to the Appellant. Having no other alternate the Appellant filed Section 9 Application before the Adjudicating Authority and the Adjudicating Authority dismissed the said Application without appreciating the facts that the Respondent liable to pay the debt and defaulted in payment which expressly borne out from the records. Respondent s Submissions: 5. The Learned Counsel appearing for the Respondent filed its Reply and submitted that there is pre-existence of dispute in respect of the payment which is subject matter before the Adjudicating Authority and this App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns the pecuniary jurisdiction to entertain the claim? 9. Now we deal with issue (a) regarding existence of dispute: (i) The Appellant filed an Application under Section 9 of the I B Code, 2016 before the Adjudicating Authority seeking initiation of Corporate Insolvency Resolution Process against the Respondent on the ground that the Respondent defaulted in making the payment to the extent of Rs.65,20,061/-. The Adjudicating Authority having noticed the invoices raised by the Appellant, however, comes to the conclusion that out of 13 invoices, 11 invoices were time barred and only 2 invoices raised on 31.08.2016 for Rs.2,04,099/- and 1,60,010/- were within the period of limitation. Further, the Adjudicating Authority was of the view th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute, if any or, record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute. As per the above position of law the dispute must be specific with regard to the same amount. In that present case, the Respondent failed to raise any dispute prior to issue of demand notice and claim of set off is only an afterthought as stated (supra). Accordingly, the issue is answered. (b) Whether the claim is barred by limitation (c) maintains the pecuniary jurisdiction to entertain the claim? Now we deal with both the issues together: (i) The Learned Counsel for the Respondent vehemently contended that claim is barred by limitation since the application filed after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... swered against the Respondent. 10. The Adjudicating Authority having noticed that the claim of the Appellant is more than Rs.1,00,000/- and is within the threshold limit, however, was of the view that the claim made by the Respondent is more than the claim made by the Appellant. The said observation is without any basis. Further the Adjudicating Authority was of the view that though the Corporate Debtor raised the claim after the issuance of demand notice, however, it observed that the goods were delivered by the Corporate Debtor to the Appellant before issuance of demand notice and raising of invoices was delayed by the Corporate Debtor, is in our view absurd and without any basis. 11. Viewed in that perspective, this Tribunal comes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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