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TMI Blog2023 (9) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... cantly, in the e-mail dated 11.09.2015 which calls upon Luxmi Electricals to submit the final bill of the work, the work relates to the Work Order No. SNG/GM(C)/Plaza/WO/11/460 dated 25.07.2011, which is the Work Order given by the Corporate Debtor SNG Techno Build Pvt. Ltd. to the Luxmi Electricals. Further, the invoices in relation to the R.A. Bills all relate to the same Work Order and the name of the site is clearly mentioned as Electrical Works at SNG Plaza at Gr. Noida - the Work Order dated 25.07.2011 is the genesis of the RA bills and the related operational debt. Time Limitation - HELD THAT:- It is clear that the dues payable between 01.10.2012 and 31.03.2015, remain at Rs. 8,54,593/- as no payments were made during this period. Thus, the operational debt gets limitation of three years from 1.10.2012, i.e., upto 30.09.2015. Within this period there is admission in Balance Sheet for the year ending 31.3.2016 wherein the due operational debt upto 31.3.2015 is included as Rs. 8,54,593/- - the work seemed to have been abandoned or stopped and upon a request by the Corporate Debtor vide e-mail dated 11.09.2015, the final bill was sought from the Operational Creditor. Aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bill dated 24.03.2018 for an amount of Rs. 14,84,805.80 but the Appellant has stated that it was sent to a Third Party Vardhman Estates Developers Pvt. Ltd. which is not the Corporate Debtor. 3. The Appellant has further stated that Demand Notice in Form-3 was sent to the Corporate Debtor vide letter dated 03.06.2019 but no invoices were attached therewith and upon request of the Corporate Debtor, the Operational Creditor supplied the relevant Invoices to the Corporate Debtor. The Appellant has further stated that the Corporate Debtor sent reply to the Demand Notice vide letter dated 26.07.2019 wherein it stated that the signatures on the documents, which are considered for admission of the operational debt, are on behalf of Third Party, namely SNG Developers Ltd but not of the Corporate Debtor and also that the operational debt is time barred since it relates to Work Order dated 25.07.2011. He has further stated that the Operational Creditor filed petition under Section 9 of IBC against the Corporate Debtor, wherein during the consideration of the said petition, the Operational Creditor filed an affidavit on 10.02.2020 to bring on record 1st, 2nd and 3rd RA bills, a certi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intained by Corporate Debtor, an amount of Rs. 8,54,593/- has been shown in the balance sheet for the year ending 31.3.2016 of the Corporate Debtor having entries of Trade Payable to the operational trade for the years ending on 31.03.2015 and 31.03.2016 which amounts to admission of the Operational Debt on 31.03.2015 and 31.03.2016. Thus, from the last payment date of 4.1.2012 of Rs. 7 lakhs, the admission through Trade Payable amount as on 31.03.2015 in the balance sheet for Financial Year 2015-16 is within three years and the final bill submitted vide e-mail dated 24.03.2018 is again within three years of the previous admission through balance dated 31.03.2015. Even otherwise, the admission in the ledger account dated 1.10.2012 shows the debt due as Rs. 8,54,593/- and the acknowledgment by the Trade Payable balance of the same amount as on 31.3.15 is within 3 years of 1.10.2012. He has argued that for the final bill of work, submitted vide e-mail dated 24.03.2018 is acknowledgment of the operational debt which is within 3 years of 31.3.2015. Thus, by virtue of admission made by the Corporate Debtor, the said Operational Debt is within the required limitation. Further, the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 11. With regard to the first issue we note the fact that the Work Order No. SNG/GM(C)/Plaza/WO/11/460 dated 25.07.2011 was issued by SNG Vardhman Techno Build Pvt. Ltd., which later on became SNG Techno Build Pvt. Ltd. We further note that e-mail dated 01.02.2012 (attached at pg. 138-139 of the Appeal Paper Book) was sent by Grover addressed to [email protected] along with many other addressees enclosing Minutes of Meeting held on 25.01.2012 relating to the progress of work in SNG Plaza. The list of members present in the meeting includes representatives of SNG, PMC (K K Consultant Engineers), Vishesh Metal Industries, Airtech Airconditioning, Abett Consulting Engineers and Luxmi Electricals and thus the complete work relating to SNG Plaza Project and the progress of the work was reviewed in the meeting. Further we note that an e-mail dated 02.02.2012 sent by Varinder Arora of the Operational Creditor addressed to [email protected] and three others (attached at Pg. 140-141 of the Appeal Paper Book) relates to an issue of payment to be made to Luxmi Electricals. Both these e-mails clearly show that SNG Plaza was an integrated Project of the SNG Group and various contractors/su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Work Order was issued on 25.07.2011. Thereafter certain payments were made by the Corporate Debtor in connection with the Running Account Bills and admittedly the last payment of Rs. 7 lakhs was made on 04.1.2012. The pending payment amounting to Rs. 8,54,593/- appears in the ledger statement issued by Corporate Debtor for the period 01.4.2011 to 30.09.2012. The same amount is also reflected in the balance sheet of the Company for the year ending 31.03.2015 and 31.03.2016 (attached at Pg. 155-177 of the Appeal Paper Book). These details included in the Notes forming part of the Financial Statement for the years ending 31.03.2015 and 31.03.2016 show the amount as Trade Payable of Rs. 8,54,593/- due to the Operational Creditor. The same amount of Rs. 8,54,593/- appears in the ledger account of the Operational Creditor as mentioned by the Corporate Debtor (Pg. 349 of the Appeal Paper Book). It is thus clear that the dues payable between 01.10.2012 and 31.03.2015, remain at Rs. 8,54,593/- as no payments were made during this period. Thus, the operational debt gets limitation of three years from 1.10.2012, i.e., upto 30.09.2015. Within this period there is admission in Balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Appellant has also referred to the judgment of Hon ble Supreme Court in the matter of Tech Sharp Engineers Pvt. Ltd. vs. Sanghvi Movers Limited [(2023) 2 Supreme court Cases 531], wherein it is held that while the claim may not be barred by limitation, but if the remedy for realization of the claim is barred by limitation, then the application for insolvency resolution may not be admitted. In the present case, the remedy for realization of the claim is through section 9 application and the Respondents have been able to make a case regarding the claim, section 9 application being within the limitation period and the operational debt is due and payable. 17. We further note that the limitation of operational debt due was upto 23.3.2021 (i.e. 3 years from the issue of Final Bill on 24.3.18). The Section 9 Application was filed within three years of the extended limitation of 23.3.2021. In such a situation, it is clear that the Section 9 Application was filed within limitation. 18. In view of the detailed discussion in the aforementioned paragraphs, we are of the view that the Impugned Order does not suffer from any error and we do not find any reason to interfere with it. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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