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The bench observed that even if the limitation is determined with reference to the date of the decree obtained under the MSME Act, the order was passed by the Facilitation Council on 23.02.2015, and the said order would also expire on 17.08.2019
The National Company Law Tribunal has observed that the liquidation proceedings do not bar a Section 9 petition under the IBC.
“However, this Bench is of considered view that the said proceeding does not bar filing of present Petition in terms of the provisions of the Code, hence, the exclusion cannot be granted for the purpose of determination of limitation aspect. On the contrary, the petition for liquidation under the Companies Act, 2013 after promulgation of the Code does not survive and must be necessarily dealt with accordance with the provision,” the order reads.
The Mumbai Bench of NCLT, consisting of Judicial Member VG Bisht and Technical Member Prabhat Kumar, heard a petition filed by the operational creditor under section 9 of the IBC for an unpaid amount of Rs. 2,36,21,491.
The operational creditor invoked statutory arbitration under the Micro, Small, and Medium Enterprises Development Act 2006 (MSMED Act) against the Corporate Debtor to recover the outstanding amounts due and payable under the unpaid invoices.
However, the execution application of the operational creditor was dismissed. Subsequently, the operational creditor filed a petition under Section 9 of the IBC. The corporate debtor had also challenged the arbitral award before the high court.
The last invoice was raised by the operational creditor between January 2012 and June 2013, but the limitation period as per Schedule 137 of the Limitation Act would have ended in 2016.
The bench observed that even if the limitation is determined with reference to the date of the decree obtained under the MSME Act, the order was passed by the Facilitation Council on 23.02.2015, and the said order would also expire on 17.08.2019.
The tribunal noted that the petition appears to be filed with the objective of recovery and not for resolution under the IBC.
“..we feel that the present petition appears to be filed with the objective of the recovery and not for the resolution of the Corporate Debtor, accordingly, this Petition does not survive on this ground also,” the order reads.
Case title: Ms Krishna Solvesolvechem Ltd vs Ms Arch Pharmalabs Limited
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