S. S. Infraconstructions Private ... vs Parvati Sweetners And Power Limited

IN THE MATTER OF: S. S. Infraconstructions Pvt. Ltd. ...Appellant

Versus

Parvati Sweetners and Power Ltd. ...Respondent

Present:

For Appellant: Mr. Ramnesh Jerath, Advocate.

For Respondent: Mr. Rishi Sood and Ms. Akshita, Advocates.

ORDER

01.12.2022: I.A. No. 4346 of 2022: This is an application praying for

condonation of delay of 79 days in refiling the Appeal. Sufficient grounds have

been shown in Paras 5 and 6 of the application by the Appellant. Refiling delay

is condoned. I.A. No. 4346 of 2022 stands disposed of.

2. I.A. No. 4362 of 2022: This is an application praying for condonation

of 13 days delay in filing the Appeal. Learned counsel for the Appellant submits

that the Appellant came to know of the impugned order on 30.06.2022 and

delay was caused. Cause shown sufficient, delay is condoned. I.A. No. 4362

of 2020 stands disposed of.

Cont'd.../ -2-

3. Heard learned counsel for the Appellant. This Appeal has been filed

against the order dated 23.06.2022 of the Adjudicating Authority by which

order application filed by the Appellant under Section 9 has been dismissed

as barred by time. The Corporate Debtor had appointed the Appellant as

contractor for carrying out civil work. Invoices were issued by the Operational

Creditor from 30.09.2012 to 26.03.2013 and last payment was received by the

Appellant on 28.02.2013. The application under Section 9 has been filed by

the Appellant on 30.07.2019. The Adjudicating Authority dismissed the

application as barred by time. In para 7 of the order following has been

observed:

"7. Admittedly, in the present case, the invoices under reference were raised between 30.09.2012 to 26.03.2013 and the last payment by the Corporate Debtor was made on 28.02.2013. The date of default is stated to be the dates on which invoices were raised on & from 26.09.2012 to 25.12.2012. Therefore, considering the date of last payment as acknowledgement of the existing debt, the period of limitation has expired (after three years) on 27.02.2016. The application for appointment of an arbitrator was filed on 17.01.2017, i.e. much beyond the period of limitation, therefore, the said application for appointment of an arbitrator cannot be said to have extended the period of limitation. As such, the application filed on 30.07.2019 under Section 9 of the IBC, 2016 is beyond the period of limitation and

Company Appeal (AT) (Insolvency) No. 1394 of 2022 -3-

accordingly, we hold that the said application is not maintainable under the IBC, 2016 and accordingly, the same stands rejected and disposed of."

4. Learned counsel for the Appellant challenging the order contends that

right to sue accrued to the Appellant when demand notice was replied on

15.03.2019 denying entitlement of the Appellant for payment. It is submitted

that there was no dispute earlier to that. He further submits that an email

dated 12.12.2014 was sent by the Corporate Debtor where all bills submitted

by the Operational Creditor were called for. Hence, the application was not

barred by time.

5. We have considered the submissions of learned counsel for the

Appellant and perused the record.

6. Admittedly, the invoices were issued from 30.09.2012 to 26.03.2013.

The email dated 12.12.2014 on which reliance has been placed by the

Appellant only states that "....please mail me all the bills submitted by yourself

and statement of account since beginning". The said email even do not come

within the meaning of acknowledgement under Section 18 of the Limitation

Act. The submission of the Appellant that right to sue accrued when demand

notice was replied on 15.03.2019 refusing to make payment, cannot be

accepted. In the present case, after issuance of the invoices when payment

was not made, cause of action arose to take appropriate proceeding. Even the

Arbitration Application was filed on 17.01.2017. We, thus, are satisfied that

Company Appeal (AT) (Insolvency) No. 1394 of 2022 -4-

no error has been committed by the Adjudicating Authority in rejecting the

application as barred by time. There is no merit in the Appeal. Appeal is

dismissed.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

[Barun Mitra] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No. 1394 of 2022