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Judgment
Per Shri H. V. Subba Rao, Member (Judicial)
ORDER
This Company Petition is filed by S. M. Ghoghai (hereinafter called “Petitioner”) seeking to set in motion the Corporate Insolvency Resolution Process (CIRP) against Schedulers Logistics India Pvt. Ltd. (hereinafter called “Corporate Debtor”) alleging that Corporate Debtor committed default in making payment to the extent of ₹76,04,050/-with interest at the rate of 12 % till the date of actual realization by invoking the provisions of Sections 8 & 9 of I & B Code (hereinafter called “Code”) read with Rule 6 of Insolvency & Bankruptcy (AAA) Rules, 2016.
Petitioner is a proprietary firm engaged in the business of providing transport services. Corporate debtor is engaged in the business of providing logistical support. Corporate debtor started its engagement with the Petitioner buy seeking transportation services from and to various parts of India. Upon providing the services, Petitioner raised invoices from time to time.
The Counsel for the Applicant states that the transactions in question pertain to services rendered to Operational Creditor i.e. transportation of goods by Operational Creditor to Corporate Debtor for the transportation of frozen food. Accordingly, Petitioner duly provided the
services for transportation to various parts of India and raised invoices against the Corporate Debtor which were duly received and acknowledged by Corporate Debtor.
The Counsel for Petitioner states that from the inception of providing of services, the Corporate Debtor was irregular in payment for the
services availed from the Petitioner and therefore from time to time, Petitioner have addressed various emails asking for clearing the outstanding amount. Pertinently, Corporate Debtor by their email dated 10th October 2017 sought for reconciliation of the accounts thereby admitting their liability for payment of the outstanding
amounts to the Respondent.
Therefore, in spite of having admitted liability by the Corporate Debtor, the Corporate Debtor failed to make any payment towards the same and therefore Petitioner was constrained to issue a notice dated 8th March 2019 under Section 9 of the Insolvency and Bankruptcy Code, 2016 seeking for payment of a debt of Rs. 76,04,050/- being the outstanding amount payable to Petitioner.
The Counsel for the Petitioner states that the Respondent by their advocates letter dated 26th March 2019 denied the contents of the Demand Notice raising a false plea that the work orders were never
issued by them and therefore the invoices are falsely raised on them.
The Corporate Debtor filed detail affidavit in reply of Mr. Arvind Gangoly, Director & Authorized Signatory of Corporate Debtor opposing the above Company Petition on the following grounds :-
The Petition is not maintainable as it is not filed by a person recognized by the Insolvency and Bankruptcy Code, 2016 -The Petition is filed in the name of a sole proprietary concern i.e. S. M. Ghoghai which is admittedly a proprietary firm. A sole proprietary firm is under the Insolvency and Bankruptcy Code is not recognized to be a person capable of maintaining petition. Hench, the Petition on this ground is not maintainable and is liable to be dismissed.
The claim underlying the Petition is hopelessly barred by limitation – the alleged invoices at Annexure B to the Petition (page 16 to 192) range from 31.03.2015 to 10.10.2016.
Bogus invoices – out of 174 invoices which form the subject matter of the petition 73 invoices are bogus invoices, have never been raised upon the Corporate Debtor and reflect transportation services which have never been sought for by the Corporate Debtor.
Inflated invoices, etc.
Heard both sides and perused the record. Upon hearing the arguments on both sides and perusing the material on record this bench feels that the only issue that’s need to be decided in the above Company Petition is
whether the above Company petition is within the limitation?
The above Company Petition is filed claiming an amount of Rs. 76,04,050/- basing on the following 174 invoices covering the period from 31.03.2015 till 25.09.2016 mentioned under Annexure ‘H’ annexed to Company Petition from pages 215 to 221 is as follows:-
It is very clear from the perusal of the relevant dates of invoices that none of the invoices are within 3 years prior to the date of filing the above Company Petition on 24.10.2019 and are all barred by limitation.
It is appropriate to mention here that the Corporate Debtor in their reply mentioned as if two bills bearing Nos. 301 & 302 dated 29.09.2016 and 10.10.2016 for a total sum of Rs. 1,30,000/-respectively alone are within a limitation assuming that the above Company Petition was filed on 03.09.2019. Upon thorough verification from Tribunal records and inward stamp appearing on Company Petition it reveals that the above petition was filed on 24.10.2019 and the above referred two invoices admitted to have been within limitation by the Corporate Debtor were also barred by limitation.
From the perusal of the above invoices this Bench has no hesitation in holding that the above Company Petition is hopelessly barred by the limitation. Since the above Company Petition is dismissed on the ground of limitation, this Bench feels that there is no necessity to make any observations or give findings on the other pleas raised by the Corporate Debtor in their reply.
Accordingly, the above Company Petition is dismissed.