1. This is a Company Petition filed under section 9 of the Insolvency & Bankruptcy Code, 2016 (IBC) by CVS Infrastructure Private Limited ("the Operational Creditor"), a company within the meaning of section 2(20) of the Companies Act, 2013, and represented by its Director, Mr. Chandrakant Vadilal Shah, on the basis of a Board Resolution dated 09.01.2018 seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Maari Multitrading Private Limited ("the Corporate Debtor"). A copy of the Board Resolution has been placed at p.35 of the Petition.
2. The Corporate Debtor is a private company limited by shares and incorporated on 21.04.2011 under the Companies Act, 1956, with the Registrar of Companies (RoC), Maharashtra, Mumbai. Its CIN is U51109MH2011PTC216503. Its registered office is at No. 51, Bajaj Bhavan (5th Floor), Nariman Point, Mumbai, Maharashtra 400021. Therefore, this Bench has jurisdiction to deal with this petition.
3. The present petition was filed on 15.05.2018 before this Adjudicating Authority on the ground that the Corporate Debtor failed to make payment of a sum of Rs. 7,78,36,979.00 (Rupees seven crore seventy-eight lakh thirty-six thousand nine hundred and seventy-nine only) as principal and Rs. 6,76,60,593.00 (Rupees six crore seventy-six lakh sixty thousand five hundred and ninety-three only) as interest as on 15.09.2014, which is the date of default. This is the amount claimed as per Sl. No. 2 at p.4 of the petition. However, this is at variance with the working for computation of default placed at p.16 of the petition, which shows that a sum of Rs. 11,97,53,791/- is the sum in default.
4. The case of the Operational Creditor is as follows: -
(a) The Operational Creditor supplied inkjet paper, photo paper etc. to the Corporate Debtor under the following invoices: (para 1 of Part IV at page 3-4 of the Petition):
(1) Invoice No. SB/25/14-15 dated 15.09.2014 for Rs. 1,60,17,750/- (out of which an amount of Rs. 1,38.96,271/- is stated to have been adjusted, leaving a balance of Rs. 21,21,479/-. Invoice copy is at p.27;
(2) Invoice No. SB/26/14-15 dated 15.09.2014 for Rs. 1,80,07,500/- Invoice copy is at p.28;
(3) Invoice No. SB/27/14-15 dated 15.09.2014 for Rs. 1,80,07,500/-. Invoice copy is at p.29;
(4) Invoice No. SB/28/14-15 dated 22.09.2014 for Rs. 1,18,65,000/-. Invoice copy is at p.30;
(5) Invoice No. SB/29/14-15 dated 22.09.2014 for Rs. 1,18,65,000/-. However, the copy of the invoice at p.31 shows that the invoice amount is Rs. 1,98,45,000/-.
(6) Invoice No. SB/30/14-15 dated 22.09.2014 for Rs. 26,46,000/-. Invoice copy is at p.32; and
(7) Invoice No. SB/31/14-15 dated 22.09.2014 for Rs. 71,82,000/-. Invoice copy is at p.33.
5. Invoices have been placed on record as Exhibit '2' at pp. 27-33. The invoices do not provide for interest in case of delayed payments. Bank statements are also attached as Exhibit '3' at pages 34. The total debt due and payable to the Operational Creditor is Rs. 11,97,53,791.00 (Rupees eleven crore ninety-seven lakh fifty-three thousand seven hundred and ninety-one only), as mentioned at page 16 of the Petition.
6. The Operational Creditor had served a Demand Notice in Form 3 dated 09.01.2018 to the Corporate Debtor (Exhibit '1', pp. 12-15) in terms of section 8 of the IBC. The Corporate Debtor has not replied to the Demand Notice.
7. Mr. Sangharsh Waghmare a/w Pooja Salvi, i/b P. Jadhav of Optima Legal Solutions, Advocates, appeared on behalf of the Corporate Debtor and made submissions.
8. In its reply dated 12.10.2018, the Corporate Debtor has set up the following defence:-
(a) There was a two-way transaction involving supply and purchase between the Operational Creditor and the Corporate Debtor (para 2 at page 1 of the Reply);
(b) At the time of purchase and sale of materials, the Corporate Debtor had issued security cheques to the Operational Creditor, and the Operational Creditor deposited the cheques without any prior intimation to the Corporate Debtor. The cheques bounced and complaint under the Negotiable Instruments Act, 1881 was filed against the Corporate Debtor before the Chief Metropolitan Magistrate's Court at Andheri. Thereafter, the Corporate Debtor filed a writ petition before the Hon'ble Bombay High Court for stay of proceedings in the lower court, which was granted. The matter is still pending before the Hon'ble Bombay High Court (para 4 at page 2 of the Reply);
(c) Thereafter, the Operational Creditor filed a complaint against the Corporate Debtor before the Economic Offences Wing (EOW) for recovery of amount twice within the space of six months, which was rejected by the EOW on the ground that the Operational Creditor failed to provide correct and legible documents of transactions. In every case raised by the Operational Creditor against the Corporate Debtor, there is variation in the amount claimed (para 5 at page 2-3 of the Reply);
(d) The tax invoices and ledger can be easily forged and moreover, there is no acknowledgement of the tax invoice. Nor has the Operational Creditor produced any Delivery Challan or Lorry Receipt (para 6 at page 3 of the Reply).
9. We have heard the arguments of both sides and perused the records.
10. This claim pertains to transactions that is stated to have taken place between 15.09.2014 and 22.09.2014. The date of default is 15.09.2014. It is not clear as to how, when the supplies have taken place upto 22.09.2014, the date of default can be 15.09.2014. However, this is of no material significance because even if we assume the date of default to be 23.09.2014, i.e., the day after the last default was raised on 22.09.2014, the question of limitation has to be considered.
11. It is not the case of the Operational Creditor that any payment has been received after 22.09.2014, in which case the applicability of section 18 of the Limitation Act, 1963, may have a bearing.
12. The Hon'ble Supreme Court, in the matter of B.K. Educational Services Private Limited vs. Parag Gupta & Associates [2018 (14) SCALE 482] (11th October, 2018), has clearly laid down in para 27 as follows: -
"27. 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 in those cases where, in the facts of the case, section 5 of the Limitation Act may be applied to condone the delay in filing such application."
[para 48 2018 SCC OnLine SC 1921]
13. In Sagar Sharma & another vs. Phoenix ARC Private Limited & another [2019 SCC OnLine SC 1332] (30th September, 2019), the Hon'ble Supreme Court reiterated its observations in B.K. Educational Services Private Limited and stated as follows: -
"3. Article 141 of the Constitution of India mandates that our judgments are followed in letter and spirit. The date of coming into force of the IBC Code does not and cannot form a trigger point of limitation for applications filed under the Code. Equally, since "applications" are petitions which are filed under the Code, it is Article 137 of the Limitation Act which will apply to such applications."
14. That being the case, since the date of default even according to the Operational Creditor is 22.09.2014, and applying the principles laid down by the Hon'ble Supreme Court in B.K. Educational Services Private Limited and Sagar Sharma judgments, the limitation for filing the proceedings ended on 21.09.2017, while the present Petition has been filed on 15.05.2018.
15. In the light of these judgments of the Hon'ble Supreme Court, the decisions of the Hon'ble National Company Law Appellate Tribunal (NCLAT) dated 14.05.2019 in Babulal Vardhaji Gurjar vs. Veer Gurjar Aluminium Industries Private Limited & another [Company Appeal (AT) (Insolvency) No. 549/2018] and dated 06.08.2019 Rajen Amrit Lal Parikh vs. Asset Reconstruction Company (India) Limited & another [Company Appeal (AT) (Insolvency) No. 604/2019] relied on by the Learned Counsel for the Operational Creditor do not help the cause of the Operational Creditor.
16. There is also no proof of any acknowledgement of liability on the part of the Corporate De
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btor within the limitation period that may have the effect of extending the period of limitation within the meaning of section 18 of the Limitation Act, 1963, as stated in para 11 supra. 17. Furthermore, even on merits, there is no evidence placed on record that the invoices were received by the Corporate Debtor. Neither have Delivery Challans evidencing service on goods on the Corporate Debtor been placed on record. 18. For the reasons stated above, the application fails and therefore, the same is rejected. 19. We make it clear that any observations made in this order should not be construed as expressing opinion on merits. The right of the petitioner before any other judicial forum shall not be prejudiced on grounds of dismissal of the present petition by this Adjudicating Authority. 20. Let a copy of this order be communicated to the parties in terms of the provisions of section 9(5)(ii) of the IBC.