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Judgment
O R D E R
26.09.2022: Heard counsel for the parties. This appeal has been filed against the order of the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench –V) dated 11.05.2022 by which order Adjudicating Authority has dismissed Section 9 application filed by the Appellant on the ground of limitation.
Brief facts necessary to be noticed are: there was Contact Agreement for supply and transport of materials between the parties on 08.12.2011.
The appellant claim is that it supplied equipment and installed, the payments were not made notice under Section 8, was issued on 27.12.2021 making claim of Rs. 8.57 crores. Application was filed under Section 9 on 23.02.2022 which application has been rejected by the impugned order.
The counsel for the appellant submits that part-IV of the application itself has noticed that the last payment was made by the Corporate Debtor on 07.06.2017 and further the last invoice which was attached along with Section 9 petition was dated 24.06.2017.
It is submitted that Adjudicating Authority committed error in noticing the last invoice as 18.04.2016 and further Adjudicating Authority has not referred to the order passed by the Hon’ble Supreme court in suo moto writ petition no. 3 of 2020 where Hon’ble Supreme Court has granted extension of limitation period with effect from 15.03.2020 and appellant was fully covered by the said order passed by the Hon’ble Supreme Court.
Counsel for the respondent submits that the application under Section 9 was rejected without issuing notice to the respondent and respondent case could not be brought on the record. He further submits that if opportunity is given to the respondent, it shall file its detailed reply before Adjudicating Authority.
We have considered the submissions of counsel for the parties and perused the record.
Adjudicating Authority itself in its order has quoted part-IV of the application which itself noticed that last payment made by the Corporate Debtor was on 07.06.2017.
The order does not notice the order of the Hon’ble Supreme Court passed in suo moto writ petition no. 3 of 2020.
Further it appears that last invoice is not 18.04.2016 but 24.06.2017 which is at page 256 of the paper book which was part of Section 9 application.
We thus are of the view that reasons given by the Adjudicating Authority for rejecting the application Section 9 as barred by time are not sustainable. We set aside the order dated 11.05.2022 and revive the application under Section 9 before the Adjudicating Authority.
Let the Respondent file the reply within three weeks from today. Replication if any by the Appellant may also be filed within two weeks thereafter.
The Section 9 application may be listed before the Adjudicating Authority after six weeks from today.
We make it clear that we are not expressing any opinion on merits of the case and all contentions of the parties are left open to be decided by the Adjudicating Authority.
The appeal is allowed accordingly.