NCLAT (02.09.2019) in Manjeet Kaur Sran vs. Tricolite Electrical Industries Ltd. [Company Appeal (AT)(Insolvency) No. 894 of 2019] held that dispute raised regarding the quantum of amount in the absence of any suit or arbitration or other evidence, it cannot be said to be pre-existing dispute.
Excerpts of the order;
02.09.2019 - M/s ‘Tricolite Electrical Industries Ltd.’ (‘Operational Creditor’) filed application u/s 9 of the Insolvency & Bankruptcy Code, 2016 (‘I&B’ Code, for short) against M/s. ‘HBN Homes Colonisers Private Limited’ (‘Corporate Debtor’). The Adjudicating Authority (‘National Company Law Tribunal’) Court No. IV, New Delhi by Impugned order dated 24th July, 2019 having admitted the same. The appeal has been preferred by Appellant – shareholder.
# 2. Learned counsel for the Appellant submits that the claim is ‘barred by limitation’ and in fact no amount was payable. However, from the record, we find the following facts emerge.
# 3. The Respondent (‘Financial Creditor’) raised various invoices of the ‘Corporate Debtor’ to the tune of Rs. 3,21,24,511/- and further transferred the amount to M/s Mitelite Electric Company Private Limited’ which is a sister concern of the Respondent-‘Corporate Debtor’ on behalf of the ‘Corporate Debtor’.
# 5. The ‘Operational Creditor’ claimed that the ‘Corporate Debtor’ paid a sum of Rs. 2,62,96,033/- and there are outstanding dues of Rs. 58,28,478/- along with interest of Rs. 36,73,378/- @ 18% as on 30.09.2017, totalling to a sum of Rs. 95,01,856/- is still payable.
# 6. Demand Notice u/s 8(1) was issued by the Respondent – ‘Operational Creditor’ on 25th October, 2017 which is the reason the Appellant has taken plea that the claim is ‘barred by limitation.’
# 7. However, from the record, we find that the Appellant – ‘Operational Creditor’ issued Legal Notice u/s 271 of Companies Act, 2013 within the period of limitation on 20th May, 2015 to the ‘Corporate Debtor’ to pay outstanding amount of Rs. 58,28,478/- along with 18% interest with clear understanding that if payment is not made winding up proceedings will be filed against ‘Corporate Debtor’. The ‘Corporate Debtor’ replied to the Legal Notice on 26th August, 2015 denying the liability wherein after the Demand Notice u/s 8(1) issued by ‘Operational Creditor’ on 25th October, 2017.
# 8. From the aforesaid facts, we find that the claim of the Respondent – ‘Financial Creditor’ was not barred by limitation.
# 9. It was next contended that the total amount has been actually paid to the
Respondent - ‘Operational Creditor’.
# 10. Learned counsel for the Appellant tried to justify the stand, however, such stand cannot be accepted as the ‘Corporate Debtor’ had taken plea that the amount payable was barred by limitation.
# 12. From the aforesaid finding of the Hon’ble Supreme Court, [Innoventive Industries Ltd. Vs. ICICI Bank (2018) 1 SCC 407] it is clear that the claim even if disputed, if default is more than Rs. 1 lakh, the Appellant will initiate the proceedings against the ‘Corporate Debtor’. Submission is made on behalf of the Appellant that the amount disputed by the ‘Corporate Debtor’ amounts to the existence of dispute but such submission cannot be accepted. It does not come within the meaning of the existence of dispute. Dispute raised regarding quantum of amount in the absence of any suit or arbitration or other evidence, it cannot be said to be pre-existing dispute.
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