JUDGEMENT

(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 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 para-8 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 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 dated prior to 2017 and are hence ‘time barred’. It is submitted that the Account is a ‘running Account’ and the ‘claim’ is well within the period of ‘Limitation’. It is the case of the ‘Appellant’ that even if the Accounts are not construed to be a ‘running Account’, the email sent by the ‘Corporate Debtor’ on 23.10.2018, asking the ‘Appellant’ to reconcile the Accounts and share of ‘payment advice’ mentioning Invoice Number very specifically and also mentioning the details of the cheque dated 13.03.2017 drawn on Bank of India for Rs.3Lakhs/- would show that the Respondent Company had admitted the liability. It is argued that since the payment was not received by the ‘Appellant’ as on 13.03.2017 or on any other subsequent dates, the communication between the ‘parties’ in October 2018 should be construed as an actual date of acknowledgment of default and therefore the ‘Right to Sue’ accrues on that date, and the Section 9 Application having been filed on 24.02.2020 was well wi