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Judgment
V. Nallasenapathy, Member (T)
This Petition is filed by Shri Balaji Paperpack Pvt. Ltd. ("Petitioner") against Laxmi Crockery (Pune) Pvt. Ltd. ("Corporate Debtor")for initiating Corporate Insolvency Resolution Process ("CIRP") as provided under section 9 of the Insolvency &Bankruptcy Code, 2016 ("Code") read with Rule 6 of Insolvency and Bankruptcy Board of India (Application to Adjudicating Authority) Rules, 2016 ("Rules")alleging that the Corporate debtor defaulted in making payment to the extent of Rs. 65,20,061/-.
The petition reveals that the petitioner claimed a sum of Rs. 45,34,589/- towards principal and Rs. 19,85,472/- towards interest on the outstanding invoices as on 20/07/2019. The followings are the details of the invoices claimed in the petition:
Sr. No.
Date of Invoice
Amount of invoice
Due Date
15% Interest on Over Due
1.
28/06/2016
5,21,897.00
28/07/2016
2,33,138
2.
28/06/2016
4,74,525.00
28/07/2016
2,11,976
3.
29/06/2016
4,69,887.00
29/07/2016
2,09,711
4.
29/06/2016
7,99,386.00
29/07/2016
3,56,767
5.
30/06/2016
5,38,133.00
30/07/2016
2,39,948
6.
17/08/2016
3,12,163.00
16/09/2016
1,33,033
7.
17/08/2016
3,15,598.00
16/09/2016
1,34,497
8.
20/08/2016
1,33,019.00
19/09/2016
56,524
9.
20/08/2016
77,933.00
19/09/2016
33,116
10.
23/08/2016
2,35,235.00
22/09/2016
99,669
11.
23/08/2016
2,92,704.00
22/09/2016
1,24,018
12.
31/08/2016
2,04,099.00
30/09/2016
85,805
13.
31/08/2016
1,60,010.00
30/09/2016
67,270
It is submitted that the petitioner had sent a demand notice to the Corporate Debtor, on 23.07.2019 in form No. 3 & 4 demanding a sum of Rs. 65,20,061/-.
The corporate debtor by its reply to the demand notice dated 08.08.2019 denied all the contents of the notice and also stated that the debt referred in the notice was set off by supply of goods by the corporate debtor to the Petitioner and also enclosed the delivery receipts for the goods supplied by the Corporate Debtor to the Petitioner. Further, the Corporate Debtor raised the following invoices on the petitioner:-
Sr. No.
Invoice No.
Date of Invoice
Date of supply of goods by the Corporate Debtor to the Petitioner
Amount of Invoices
1.
GLCP/V/01
01.08.2019
12.04.2018
4,34,893/-
2.
GLCP/V/02
01.08.2019
27.03.2018
9,33,815/-
3.
GLCP/V/03
01.08.2019
28.03.2018
1,24,421/-
4.
GLCP/V/04
01.08.2019
29.03.2018
9,19,465/-
5.
GLCP/V/05
01.08.2019
30.03.2018
9,03,366/-
6.
GLCP/V/06
01.08.2019
30.03.2018
3,37,008/-
7.
GLCP/V/07
01.08.2019
04.04.2018
3,52,785/-
8.
GLCP/V/08
01.08.2019
04.04.2018
4,20,561/-
9.
GLCP/V/09
01.08.2019
04.04.2018
5,75,553/-
The Corporate Debtor enclosed the delivery receipts for receipt of goods by the petitioner from the Corporate Debtor in respect of the supplies made, for which, the invoices were raised after the receipt of demand notice.
The Corporate Debtor submits that in view of the invoices raised by the Corporate Debtor, the amount payable to the petitioner was set off against the debt due claimed in this petition.
Even though the invoices raised by the Corporate Debtor against the petitioner, referred supra, were raised only after the issue of the demand notice dated 23.07.2019 by the petitioner, the petitioner has not denied the receipt of the materials from the corporate debtor which the corporate debtor claims to set off against the present claim.
It is to be noted that out of the thirteen invoices raised by the petitioner against the Corporate Debtor for Rs. 45,34,589/-, eleven invoices were time barred, in view of the fact that neither there was a payment by the Corporate Debtor nor any acknowledgement of liability and this petition filed on 26.08.2019 clearly after three years from the date of invoice. Only two invoices raised on 31.08.2016 for Rs. 2,04,099/- and Rs. 1,60,010/- totalling Rs. 3,64,109/-are within the limitation. Thus the invoices to the extent of Rs. 41,70,480/- is clearly time barred.
This Bench is aware that when the claim is more than Rs. 1,00,000/- (Rupees One Lakh only) the petition has to be admitted as provided under Section 4 of the Insolvency & Bankruptcy Code, 2016.
However, in view of the fact that the materials supplied by the Corporate Debtor to the petitioner is more than the principal due claimed by the petitioner in this petition, the Corporate debtor is entitled for set off in spite of the fact that the invoices were raised by the corporate debtor subsequent to the issue of demand notice.
Even though the petitioner has contended that the invoices were raised by the Corporate Debtor for the supply made by them only after the issue of demand notice the facts remains that the goods were delivered by the Corporate Debtor to the petitioner before the issue of demand notice and only the raising of invoice was delayed by the Corporate debtor.
In the light of the above discussion this petition is dismissed. No cost.