TaxTMI 
TaxTMI 
2024 (7) TMI 193
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..../KB/2022. By the impugned order, the Adjudicating Authority dismissed the Section 9 application filed by the Appellant - Operational Creditor against the Corporate Debtor on grounds of non-fulfilment of the prescribed threshold limit of Rs.1 crore. Aggrieved by the impugned order, the present appeal has been preferred by the Appellant. 2. We have heard Mr. Anirban Bhattacharya, Learned Advocate representing the Appellant and Mr. Victor Dutta, Learned Advocate representing the Respondent. 3. Outlining the factual matrix, the Learned Counsel for the Appellant submitted that Bajrang Steel Trading Company Pvt Ltd - Operational Creditor had been supplying iron goods to Ramkrishna Engineering Pvt Ltd - Corporate Debtor on the basis of purchase order placed by the Corporate Debtor. It was further submitted that the goods were delivered to the Corporate Debtor and were accepted without any objections or complaints at any point of time. For the goods supplied, invoices were raised by the Appellant. The Corporate Debtor never raised any dispute with regard to the correctness or validity of the invoices raised by the Appellant. 4. It was submitted that the Corporate Debtor had acknow....
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....w. 7. Refuting the contentions raised by the Appellant, the Learned Counsel for the Respondent submitted that the Section 9 application filed by the Appellant/Operational Creditor is not maintainable since it does not meet the threshold criteria of Rs.1 cr prescribed in Section 4 of IBC. It was submitted that the principal amount claimed to have been in default is below the threshold limit as in Part IV of the Section 9 application, the Operational Creditor has admitted the principal amount in default as Rs.47.49 lakhs only and the remaining amount of Rs.97.84 lakhs is delayed payment interest. It has also been contended that the computation sheet annexed to the Section 9 application, the principal amount claimed to be in default is not inclusive of interest and that the interest amount has been separately added later. 8. The liability to pay delayed payment interest has been disputed and denied by the Corporate Debtor as there is no contract or agreement between the parties for payment of interest. It is contended that such unilateral imposition of interest is not acceptable and constitutes a valid ground of dispute between the parties. It has been also asserted that the Cor....
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....hen we see the material on record, we find that the entire debt including the levy of interest amount has been denied by the Corporate Debtor in their reply to the Demand Notice. The said reply of 01.11.2021 can be seen at page 363 of Appeal Paper Book ('APB' in short). For easy reference, the relevant excerpts is as reproduced hereunder : 01.11.2021 "To Bajrang Steel Trading Co. (India) Pvt. Ltd. 23A, Netaji Subhash Road Kolkata 700001 Dear Sir, Re : Purported Demand Notice dated October 07, 2021 issued under the Insolvency and Bankruptcy Code, 2016 We are in receipt of your purported demand notice/Form -3 dated October 07, 2021 purportedly issued under Section 8 of the Insolvency and Bankruptcy Code, 2016 demanding payment of a purported sum of Rs.1,45,34,345/-. ...... .......... .......... Without prejudice to the aforesaid, it is sated that there is no unpaid operational debt or any other debt due to you from us. The purported amount claimed by you is astronomical and unsupported by any documentary proof whatsoever. We state that all payments which you were entitled to have already been ma....
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....Rs.47,49,701/-. The balance amount entirely consists of interest. (c) Admittedly, there is no contract or agreement between the parties, either for payment of interest, or for payment of any amount. However, for the purpose of present issue of maintainability, I say that the parties never agreed upon payment of any interest whatsoever. (d) Not a single correspondence was produced by the Operational Creditor to the effect that the Corporate Debtor had ever agreed to pay interest on any purportedly outstanding amount. (e) In fact, by its letter dated 1st November 2021 issued in response to the demand notice, the Corporate Debtor had specifically denied the interest component, along with the principal amount. (f) Moreover, from a perusal of the Computation Sheet annexed with the said petition, it will be evident that the alleged principal amount claimed to be in default has been mentioned as Rs.47,49,701/-, which is not inclusive of interest at all. The interest component has been separately added to the said alleged claim. (g) No averment has also been made to the effect that the Corporate Debtor has ever paid interest on any outstanding a....
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....11 supra and reply to the Section 9 application at para 12 supra, we find that this is a case where according to the Corporate Debtor there was no agreement between the parties to make any payment of interest and the claim of interest is without any basis. The Corporate Debtor having refuted the claim of the Operational Creditor and also denied any liability towards interest payment, the claim regarding interest was clearly disputed. In the given facts and circumstances, we have no hesitation in holding that the Adjudicating Authority had correctly held that the amount of interest having been disputed, the said interest amount cannot be clubbed with the principal amount, thereby threshold criteria laid down under Section 4 of the IBC is not met. 14. We also find that the Adjudicating Authority while dismissing the Section 9 application has relied on two judgments of this Tribunal for not clubbing the interest amount on account of delayed payments with the principal amount. Reliance has been placed on Steel India v. Theme Developers Pvt. Ltd. in CA (AT) (Ins) No. 1014 of 2019 wherein it has been held that : "It is settled that the charging of interest, ought to be an actionable c....