Lasa Engineers Pvt. Ltd vs Devas Engineering Systems Pvt. Ltd

M/s. Lasa Engineers Private Limited ...Appellant

Versus

M/s. Devas Engineering Systems Private Limited ...Respondent

Present:

For Appellant : Mr. Shashi Kiram Shetty, Senior Advocate with Ms. Anuparna Bordoloi, Ms. Sheffali Chaudhary, Mr. R. Manjunath, Mr. Mahesh Thakur and Mr. Srinivas Murthy, Advocates.

For Respondent: Mr. T. Srinivasa Murthy, Mr. Anandh K., Mr. Gaurav Choudhary, Advocates.

SUDHANSU JYOTI MUKHOPADHAYA, J.

The Appellant- 'M/s. Lasa Engineers Private Limited'- ('Operational

Creditor') filed an application under Section 9 of the Insolvency and

Bankruptcy Code, 2016 ("I&B Code" for short) for initiation of the 'Corporate

Insolvency Resolution Process' against 'M/s. Devas Engineering Systems

Private Limited'- ('Corporate Debtor'). The Adjudicating Authority (National

Company Law Tribunal), Single Bench, Chennai, by impugned order dated

21st January, 2019 dismissed the application on the ground that there is no

debt payable in fact as the account balance shows that 'NIL' amount is 2

payable by the 'Operational Creditor'. Further the Adjudicating Authority

held that the claim was barred by limitation.

2. Learned counsel for the Appellant submitted that the claim filed by

the Appellant was not barred by limitation.

3. It was submitted by counsel for the Appellant that subsequently on

issuance of Legal Notices dated 18th July, 2016 and 17th July, 2017 in Form

4, the Respondent sought to take a stand that the claim is barred by

limitation.

4. Learned counsel for the Respondent referred to a communication

made by the Respondent- M/s. Devas Engineering Systems Private Limited'-

('Corporate Debtor') to the 'Operational Creditor' dated 5th August, 2013

wherein the 'Corporate Debtor' intimated that the balance as on 5th August,

2013 was 'NIL'. It is stated that no objection was made thereafter.

5. Having heard learned counsel for the parties and on perusal of the

record, we find that that the communication made by the 'Corporate Debtor'

on 5th August, 2013 shows that there is no amount payable to the

'Operational Creditor', which was not disputed by the 'Operational Creditor'.

6. Subsequently, when Legal Notice issued by the 'Operational Creditor'

on 18th July, 2016 followed by Legal Notice dated 17th July, 2017, the

'Corporate Debtor' has taken specific plea that otherwise also the claim is

barred by limitation.

7. In the present case, before issuance of the Demand Notice under

Section 8(1) on 26th December, 2017, the 'Corporate Debtor' has disputed

Company Appeal (AT) (Insolvency) No. 216 of 2019 3

the claim and taken plea that it was barred by limitation. Such plea having

been taken by the 'Corporate Debtor' prior to 26th December, 2017, we hold

that there was a pre-existence of dispute.

8. For the reasons aforesaid, no interference is called for against the

impugned order. In absence of any merit, the appeal is accordingly,

dismissed. No costs.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice A.I.S. Cheema ] Member (Judicial)

[ Kanthi Narahari ] Member (Technical)

NEW DELHI 13th November, 2019

/AR/

Company Appeal (AT) (Insolvency) No. 216 of 2019