TaxTMI 
TaxTMI 
2022 (7) TMI 835
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....nil Vyas, Mr. Nausher Kohli, Mr. Palzer Moktan, Ms. Dipti Das, Mr. Deep Morabia & Mr. Aditya Shukla, Advocates For the Respondent : Mr. Saurabh Pandya, Mr. Viraj Parikh, Mr. Mahur Mahajan, Advocate for R-1. Ms. Rubina Khan & Mr. Rohit Gupta, Advocate for R-2 JUDGMENT ( Virtual Mode ) NARESH SALECHA, MEMBER (TECHNICAL) The Present Appeal is filed against the Impugned Order (IO) dated 07.06.2022 passed in CP (IB) No. 1443/MB-IV/2020 by the Adjudicating Authority/National Company Law Tribunal, Mumbai Bench- IV, whereby, the Adjudicating Authority admitted an Application filed by Respondent No. 1 under Section 9 of the Insolvency & Bankruptcy Code, 2016 (in short IBC) and appointed Mr. Santanu T. Ray as Insolvency Professional (I....
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....is only Rs. 97,87,220/- which is below the prescribed threshold limit. He argued that as per notification No. S.O 1205(E) dated 24.3.2020 issued by the Ministry of Corporate Affairs, Government of India, threshold limit of Rs. 1 Crore will be applicable for any application filed under Section 7 or 9 of IBC. He therefore, emphasis that application was ex-facie not maintainable and consequently is nullity in law and deserved to be dismissed. 7. He also cited case laws of NCLT, namely, 'CBRE South Asia Pvt. Ltd. vs. United Concepts and Solutions Pvt. Ltd.' and NCLAT's Judgement of Jumbo Paper Products vs. Hansraj Agrofresh Pvt. Ltd. According to Learned Counsel, Hon'ble NCLAT in judgment in case of 'Steel India vs. Theme Developers Pvt. Ltd....
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....- "4. Application of this Part - (1) This part shall apply to matters relating to the Insolvency and liquidation of corporate debtors where the minimum amount of the default is one lakh rupees. Provided that the Central Government may, by notification, specify the minimum amount of default of higher value which shall not be more than one crore rupees." Vide the notification No. S.O 1205 (E) dated 24.3.2020 issued by the Ministry of Corporate Affairs as announced the threshold limit had been increased from Rs. 1 lakh to Rs. 1 crore for purpose of Section 4 of IBC. (iii) Learned Counsel for Appellant has cited few cases as discussed earlier in favour of appeal hence it will be desirable to go through. (a) We h....
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....isputedly, payment was delayed. Therefore the 'Corporate Debtor' is liable to pay interest amount as per agreed terms and conditions. 14. The 'Operational Creditor' has placed reliance on the email dated 05th September 2015, which shows that 'Operational Creditor' quoted the rate to the 'Corporate Debtor' wherein, it was mentioned that if payment was delayed for more than 60 days, then interest@ 2% per month will be charged. The Operational Creditor / Appellant has not filed any document to show that the Corporate Debtor ever agreed to pay the interest on delayed payment. Based on an email dated 05th September, 2015, it is apparent that the Operational Creditor quoted the rate which contains the clause of ch....
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....notice. The alleged claim amount, towards interest on loan alone, cannot be termed as an 'Operational Debt'. For the reasons aforesaid, we are not inclined to interfere with the order passed by the Learned Adjudicating Authority." (emphasis supplied) We have perused 9 invoices issued by OC raised against CD at Page No. 47 to 55 of the Memo of Appeal, Volume I and noticed that it has clearly been mentioned under terms and condition " interest will be charged @ 18% plus GST P.A after due date of the bill" unlike in cited judgment of NCLAT 'Steel India vs. Theme Developers Pvt. Ltd.' (Supra) where there was no mention of interest in delayed payment at all vis-à-vis specific mention of interest on delayed payment in a....
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.... (v) Before coming to any conclusion, it will also be pertinent to go through legal definition of debt. The definition of debt as per section 3(11) of IBC is as under:- 3(11) "debt" means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt." Since, the word "claim" is mention in definition of debt in Section 3(11) we need to refer to definition of claim under Section 3(6) of IBC which is as follows:- "3.(6) "claim" means (a) a right to payment, whether or not such right is reduced to judgment, fixed, disputed, undisputed, legal, equitable, secured or unsecured; (b) right to remedy for breach of contract under any law for the t....