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TMI Blog2024 (6) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of default prepared by the OC. The OC has also produced Annexure- C, containing particulars of invoices - A demand notice under Section 8 of the IBC has been issued to the CD dated 15.11.2019; however, no reply was received by it in spite of the same having been served on the CD. Since the OC did not produce any invoice on record, it is difficult to ascertain the veracity of its claims and upon perusal of its computation of claims, it is found that all the invoices were raised during the period from 10.05.2015 to 31.12.2017. There is no evidence to suggest whether the alleged debt has been acknowledged by the CD. The bank account statement produced by the OC indicates receipt of Rs. 50,000/- from the CD 15.11.2019 - the law of limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of Suvarna Additives Limited, the Corporate Debtor (CD). 1.2 The total amount of default alleged is Rs.2,33,10,961/- (Two Crore Thirty-Three Lakh Ten Thousand Nine Hundred Sixty-One Rupees), which comprises of principal amount of Rs. 1,12,46,443/- and Rs. 1,20,64,518/- as compound interest as on 01.11.2019, calculated as per the provisions of the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act). It is based on several unpaid invoices issued by the OC during the period between 2015 and 2019 in lieu of selling and supplying goods to the CD. 1.3 The date of default as mentioned in Part IV of the Application is 16.09.2019, i.e., the date on which the CD finally stopped making payments towards the invoice dated 02.05.2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of aforesaid dues, the OC issued demand notice dated 15.11.2019 under Section 8 of the IBC to the CD for recovery of Rs. 2,33,60,961/- including compound interest as per the MSMED Act. Despite the receipt of demand notice on 02.12.2019 by the CD, it not only failed to give any reply but also did not make any payment towards settling the outstanding dues. 2.4 The OC has placed on record a statement of its bank account for the period from 01.11.2019 to 24.12.2019, showing that the CD has made part-payment of Rs. 50,000/- after issuance of the demand notice dated 15.11.2019. 2.5 The Ld. Counsel for the OC contended that the OC is also entitled to claim interest upon the amount raised through unpaid invoices as per Section 15 and 16 of the MSME ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ognizance of the reply filed by the CD. However, without prejudice to the above, we propose to deal with the present Application on merits based on the submissions made by the Ld. Counsel for the OC and the CD. 4. ANALYSIS AND FINDINGS 4.1 We have perused all the documents and pleadings and heard both the Ld. Counsel for the OC and the CD. 4.2 As far as the issue of limitation is concerned, we find that the invoices claimed by the OC dated back 2015 to 2019 while the present Application was filed on 20.02.2021. On perusal of the records, we do not find copy of any invoice produced by the OC in support of its claim of generating them except Annexure-H containing Computation of default prepared by the OC. The OC has also produced Annexure- C, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no evidence to suggest whether the alleged debt has been acknowledged by the CD. The bank account statement produced by the OC indicates receipt of Rs. 50,000/- from the CD 15.11.2019. However, in the absence of any purchase order or invoice, we cannot presume that the amount was in relation to any debt or liability as alleged by the OC. In the circumstances, we hold that the law of limitation has come into play since the present Application is filed beyond the limitation period of three years from the date of alleged default as per the invoices. Thus, the issue of limitation is decided against the OC. 4.5 In short, the OC has not succeeded in proving existence of any operational debt due and payable to it by the CD. Initiation of CIR ..... X X X X Extracts X X X X X X X X Extracts X X X X
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