Case Law Details
Sadguru Traders Vs Gajalee Coastal Foods Pvt. Ltd (NCLT Mumbai)
It is the submission of the Counsel appearing for the Operational Creditor that even though certain invoices preceding 3 years presenting the company petition are barred by limitation, the above Company Petition can be admitted in respect of the unpaid invoices that are within the limitation and thus prayed for the admission of the above Company Petition.
The learned counsel appearing for the Corporate Debtor opposed the above argument of the Operational Creditor contending that even if the aforesaid Invoices (which are ex facie barred by limitation) are to be excluded, the Petition would still not be maintainable in view of the decision of the Hon’ble NCLAT in Next Education India Private Limited vs. K12 Techno Services Private Limited. In Company Appeal No. 98/2019 where it was observed and held as under:
Para- 13. Whether the ‘Operational Creditor’ can change the ‘date of default’ by confining the invoices to a later period, when the Demand Notice under section 8 includes all the invoices from the date of default and the ‘debt amount’ is crystallized based on the invoices.
Para- 21. As can be seen from Section 8, reproduced above, the moment there is an occurrence of a default, copy of an invoice demanding payment of the amount involved in the default is to be delivered by way of a Demand Notice to the ‘Operational Creditor’. Form III gives the details of the invoices. In the instant case, the ‘Operational Creditor’ has given the details of invoices from (pages 399 to 406 of Volume II) and has also crystalized the amount at Rs. 2,39,85,521.35/-, which is unpaid from 2011. Therefore, the argument of the Learned Counsel for the ‘Operational Creditor’ that the period should be confined only from 2015 to 2017 cannot be sustained. The Tribunal cannot confine to one or other invoice if the Applicant has relied on all the invoices to arrive at the amount of Rs. 2,39,85,521.35/- in the Demand Notice under Section 8. We are of the view that the Tribunal does not have jurisdiction in these Insolvency Proceedings to cut-short the invoices which would cause recurring dates of cause of action as it is not a suit for recovery.”
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