National Company Law Appellate Tribunal Prime Silicons Chennai Pvt Ltd vs Ucl Fuel Systems Ltd on 17 February, 2023 NATIONAL COMPANY LAW APPELLATE TRIBUNAL AT CHENNAI (APPELLATE JURISDICTION) Company Appeal (AT) (CH) (Ins.) No. 299 of 2021 Under Section 61 of the Insolvency and Bankruptcy Code, 2016) (Arising out of the `Impugned Order' dated 29.04.2021 in IBA No.364 of 2020, passed by the 'Adjudicating Authority' National Company Law Tribunal, Division Bench II, Chennai) In the matter of: M/s. Primee Silicones (Chennai) Pvt. Ltd. Rep. by its authorized person R. Giridharan No. 131/B, JRR Tower, Mustafa Street, Rajarajan Nagar, Mettukuppam, Vanagaram, Chennai 600095 ..... Appellant v. M/s. UCAL Fuel Systems Ltd. Raheja Towers, Delta Wing, Unit 705177 Anna Salai, Chennai 600002 ..... Respondent Present: For Appellant : Mr. T. Sri Krishna Bhagavat, Advocate For Respondents : Mr. P.H. Arvindh Pandian, Senior Advocate For Ms. R. Ragha Sudha, Advocate JUDGMENT (Virtual Mode) [Per; Ms. Shreesha Merla, Member (Technical)]: 1. Dissatisfied with the 'Order' dated 29.04.2021 passed by the Learned Adjudicating Authority, (National Company Law Tribunal, Division Bench II, Chennai) in IBA No.364/2020, M/s. Primee Silicones (Chennai) Private Limited/the 'Operational Creditor' preferred Comp. App. (AT) (CH) (Ins.) No. 299/2021 Page 1 of 15 this 'Appeal', challenging the 'Order' of dismissal of the Application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016, (hereinafter referred to as 'The Code'). While dismissing the Section 9 Application, the 'Adjudicating Authority' observed as follows: "6. Further, the account is not a "Running Account" as stated in reply by respondent. Clearly, 17 out of 25 invoices are beyond the period of limitation. The applicant has not filed any documents to satisfy that the old invoices are valid and enforceable in the eye of law. The respondent has stated in para8 of the reply, the payment was made to exact amount of each invoice. Hence, on perusal of pleadings and documents, we conclude that the account cannot be termed as "running account" as evidence in Invoices at Page 18 to page 42, calculation sheet at page.43. The Operational Creditor has claimed interest at the rate of 24% per annum since earlies invoice dated 29.04.2015. The claim of Applicant included principal and interest since 29.04.2015. Admittedly, out of 25 invoices 17 are barred by limitation. The applicant has failed to prove "debt" and "default" as stated in application. However, this order does not bar the applicant to approach Civil Court for recovery, if any." 2. It is stated that the 'Operational Creditor' is involved in the business of manufacturing Metal Forming Fluid Lubricant and Industrial Oils and in the due course of business, the 'Corporate Debtor' had placed several 'Orders' and accordingly the 'Appellant'/'Operational Creditor' has supplied 'Die Coat' to the 'Corporate Debtor' from the Year 2013 onwards and corresponding Tax Invoices were raised from time to time. It Comp. App. (AT) (CH) (Ins.) No. 299/2021 Page 2 of 15 is the case of the 'Appellant' that the last payment was received from the 'Corporate Debtor' on 07.11.2019 and despite several emails sent for seeking payment, the 'Corporate Debtor' did not respond. It is submitted that a 'Demand Notice' was issued on 07.02.2020, which was received by the 'Corporate Debtor', but the 'Company' has not made any further payments. It is the case of the 'Operational Creditor' that the 'Corporate Debtor' is required to pay a sum of Rs.13,24,275/ (Rs.8,03,815/ towards 'principal amount' and Rs.5,20,460/ towards 'interest' at 24% p.a.) and with further interest of 24% p.a. till the date of payment. 3. Learned Counsel for the 'Appellant' strenuously contended that the 'Operational Creditor' is a registered MSME; that the 'Corporate Debtor' has not disputed the receipt of goods or raised any disputes prior to the receipt of 'Statutory Notice' dated 07.02.2020, but their only contention is that some of the invoices are date