TaxTMI 
TaxTMI 
2020 (10) TMI 61
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....IBC") by Vitson Steel Corp Private Limited ("the Operational Creditor") [CIN: U51420KL2012PTC032061], a company within the meaning of section 2(20) of the Companies Act, 2013 and represented by its Manager, Mr. AH Quadri, on the basis of a Board Resolution dated 20.03.2019 seeking to initiate Corporate Insolvency Resolution Process ("CIRP") against Capacit'e Infraprojects Limited ("the Corporate Debtor"). 2. The Corporate Debtor is a listed public company limited by shares and incorporated on 09.08.2012 under the Companies Act, 1956, with the Registrar of Companies (RoC), Maharashtra, Mumbai. Its CIN is L45400MH2012PLC234318. Its registered office is at No. 605-606, Shrikant Chambers Phase-I (6th Floor), Adjacent to RK Studios, Sion-....
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....ed at pages 3 and 24-26 of the Petition. 6. The Operational Creditor had served a Demand Notice in Form 3 dated 26.02.2019 to the Corporate Debtor (Exhibit '5', pp. 16-23) in terms of section 8 of the IBC. The Corporate Debtor has sent a reply dated 12.03.2019, wherein they have stated that as per the terms of the purchase order placed upon the Operational Creditor, all payments except a sum of Rs. 13,84,129.37 has been paid. The interest component of 24% per annum is neither tenable nor payable, since it was never contracted for. The reply has been annexed at Exhibit '8' at pp. 30 of the Petition. 7. Mr. Shyam Kapadia, learned Counsel appeared on behalf of the Corporate Debtor and made his submissions. 8. In its re....
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.... December 2017, the interest has been levied and calculated from 20.10.2017 onwards. There is no explanation for this calculation (para 6.4.5 at page 94-95 of the Reply); (g) The Corporate Debtor was not aware of the status of the Operational Creditor as a MSME registered under the MSME Act. This fact came to light only after the petition was amended pursuant to the orders dated 07.08.2019 (sic 13.08.2019) of this Tribunal (para 7.4 at page 96 of the Reply); (h) The Corporate Debtor is a solvent, profit-making company enjoying a high net worth of Rs. 298.80 crore as at 31.03.2017, which increased to Rs. 843.13 crore as at 31.03.2018 (para 8 at page 97 of the Reply). 9. We have heard the arguments of both sides and perus....
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....e interest component is covered under section 16 of the said Act. Section 17 of the said Act details the mode of recovery due. In such cases, a reference to the Micro and Small Enterprises Facilitation Council may be made under section 18(1) of the Act. 13. In the original petition, interest was being claimed at the rate of 24% per annum based on "industry practice." However, in the revised petition, the Operational creditor has stated that it is entitled to claim interest at three times the bank rate compounded at monthly rests. 14. Mr. Shyam Kapadia, learned Counsel for the Corporate Debtor, has repeatedly submitted during the course of hearing that the corporate debtor is ready and willing to make full payment of the principal amou....
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....7 as follows: "Now coming to the issue as regards the unpaid liability in respect whereof the 'Operational Creditor' alleged default, be it seen that as per the settled law on the subject dispute in regard to the quantum of liability does not defeat triggering of the Corporate Insolvency Resolution Process so long as the amount claimed to be in default is payable in law and in fact..." 18. While we are in respectful agreement with this decision, it is clear that in the present case, the Corporate Debtor was kept completely in the dark as to the MSME status of the Operational Creditor even after the filing of the present petition. Therefore, there was, to that extent, suppression of material fact when the Demand Notice da....
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....his order. We leave it to the wisdom of the Operational Creditor to accept such principal sum due from the Corporate Debtor 22. As regards interest, in case the Operational Creditor is so advised, it may make a reference to the Council constituted in terms of section 18(1) of the MSME Act, 2006. 23. The Counsel for the Corporate Debtor also relied upon the decision dated 14.08.2018 of the Hon'ble Supreme Court in K Kishan v Vijay Nirman Company Private Limited 2018 SCC OnLine SC 1013, wherein it was held as under: - "17. Following this judgment, it becomes clear that operational creditors cannot use the Insolvency Code either prematurely or for extraneous considerations or as a substitute for debt enforcement procedures. ....