JUDGEMENT

(Hybrid Mode) [Per: Arun Baroka, Member (Technical)] This is an appeal under Section 61 of the Insolvency & Bankruptcy Code, 2016 (hereinafter referred to as “IBC”) filed by the M/s Laxmi Trading Corporation (hereinafter referred to as LTC or Operational Creditor) M/s Company Appeal (AT) (Insolvency) No. 1476 of 2023 2 of 15 Hindustan Construction Company Limited (hereinafter referred to as HCCL or Corporate Debtor) against the Impugned Order dated 25.08.2023 passed by the National Company Law Tribunal, Mumbai Bench, (Adjudicating Authority) in Company Petition (IB) No. 147/MB-IV/2021 under Section 9 of the IBC, 2016.

Brief facts of the Appeal relevant for the case:

2. M/s Laxmi Trading Corporation (Operational Creditor) was supplying hardware tools, rubber goods, pipes and fittings, and other related equipment to M/s Hindustan Construction Company Limited (Corporate Debtor), which is engaged in the business of Engineering and Construction, Real Estate, Infrastructure, Urban Development & Management. The Corporate Debtor had bought hardware goods from the Operational Creditor by various purchase orders between the period of 2010 to 2019. The OC had issued/raised various invoices with a total amount of Rs.3,71,55,764.8 (Rupees Three Crores Seventy-One Lakhs Fifty-Five Thousand Seven Hundred Sixty-Four and eighty Paisa only), aggregating in all the projects.

Out of these invoices, the CD has made partial payments on running account basis amounting to Rs.2,17,47,092.13 (Rupees Two Crores Seventeen Lakhs Forty-Seven Thousand and Ninety-Two and Thirteen Paisa Only) aggregating in all the six projects. Overall, there was a shortfall of Rs.1,54,08,672.77 (Rupees One Crores Fifty-Four Lakhs Eight Thousand Six Hundred Seventy- Two and Seventy-Seven Paisa Only).

3. The OC issued e-mail dated 14.07.2017 to the CD requesting for the payment for each of the projects. The CD deposited Rs.4,00,000/- (Rupees Company Appeal (AT) (Insolvency) No. 1476 of 2023 3 of 15 Four Lakhs Only) in the account of the OC, but it was never received by the OC and this was conveyed also to the CD. The OC sent another e-mail on 07.01.2019 and 26.01.2019 and both e-mails were unanswered. On 30.10.2019 partial payment of Rs.3,00,000/- was made by CD on a running account basis. Again on 03.08.2021 partial payment of Rs.2,00,000/- was made by the CD and which was a last payment received from the CD.

4. The OC issued a demand notice on 17.03.2020 as per Rule 5 of the Insolvency and Bankruptcy Rules, 2016, with a demand of Rs.3,73,32,239.30 (Rupees Three Crores Seventy-Three Lakhs Thirty-Two Thousand and Two Hundred Thirty-Nine and Thirty Paisa Only) which included interest calculated @ 24% p.a. up to 29.02.2020.

5. The CD failed to reply to the demand notice and accordingly, the OC filed the application before the NCLT, New Delhi, which was dismissed by the impugned order and which is the matter of Appeal herein.

Respondent’s case in brief:

6. Respondent submitted that the claims made by the Appellant are beyond the period of limitation. Out of 234 invoices, 224 invoices are ex-facie time barred. Also, the claims which are within the period of limitation are below the threshold limit of Rs.1,00,00,000/- (Rupees One Crore Only) as provided under Section 4 of the Code. The claims of the Appellant that there is a running account with the Corporate Debtor and the separate ledgers referred to by the Adjudicating Authority were only for the sake of convenience of the Appellant as a ground was not raised by the Appellant before the Company Appeal (AT) (Insolvency) No. 1476 of 2023 4 of 15 Adjudicating Authority. This is also not contended by the Appellant in his Form-5 and more particularly in