TaxTMI 
TaxTMI 
2025 (2) TMI 961
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....d by the National Company Law Tribunal, New Delhi (in short 'Tribunal') by which an application filed the Operational Creditor under Section 9 of the Insolvency and Bankruptcy Code, 2016 r/w Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (in short 'Rules') has been admitted. 2. The aforesaid application was filed by the Operational Creditor for an amount of Rs. 6,13,48,161.98/- out of which Rs. 4,97,22,461.16/- was towards the principal and Rs. 1,16,25,700.82 was towards the interest. 3. According to the Operational Creditor, the CD had already paid Rs. 4,97,22,461.16/- i.e. the principal amount out of Rs. 6,13,48,161.98 but the remaining amount of Rs. 1,16,25,700.82 includes both principal as well as the interest. 4. The Operational Creditor sent a demand notice to the CD on 05.07.2023 which was replied by the CD on 20.07.2023 and contested the amount demanded in the demand notice. 5. During the pendency of the proceedings before the Tribunal, the CD paid the entire amount of Rs. 4,97,22,461.16/- and sent an email to the Respondent on 31.01.2024. The subject of the email is as under:- "We would like to inform you th....
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....Kekre was appointed as the IRP of the CD. 11. Counsel for the Appellant has argued that the OC has relied upon invoice in which there is a provision for charging of interest at the rate of 12% in case of delay in payment. One such invoice is reproduced as under : - 12. It is submitted by the Appellant that the interest clause in the footnote of the invoice is merely a boilerplate provision and was never acknowledged or signed by the CD. 13. It is further submitted that nothing has been brought on record by the OC by way of any email, purchase order or any other document which may substantiate the claim that the interest was ever agreed upon by the parties. 14. It is also argued that even the clause of the footnote do not specify the date of payment to hold the delay for triggering the component of interest. 15. In this regard, he has relied upon two decisions in the case of Comet Performance Chemicals Pvt. Ltd. Vs. Aarvee Denims and Exports Limited CA (AT) (Ins) No. 1878 of 2024 decided on 13.01.2025 and Rohit Motawat Vs. Madhu Sharma Proprietor Hind Chem Corporation & Anr., CA (AT) (Ins) No. 1152 of 2022 decided on 03.02.2023. 16. On the other hand, Counsel for t....
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....ply be filed within two weeks. Rejoinder be filed within two weeks thereafter. List this Appeal on 06th May, 2024. In the meantime, Impugned Order dated 22.03.2024 shall remain stayed. In event the Appeal is dismissed the Appellant undertakes to pay the interest." 19. There is no dispute to the fact that out of total amount of Rs. 6,13,48,161.98/- Rs. 4,97,22,461.16 was towards the principal amount and Rs. 1,16,25,700.82/- was the interest. It is also not in dispute that Respondent No. 2 has claimed the interest only on the basis of invoice in which it has been mentioned that "in case of delay payment, interest will be charged @ 12% or as per the agreed terms" whereas no other document has been placed on record, much less, any purchase order or the agreement between the parties which can reflect the terms and conditions of the interest. It is also not in dispute that the CD had already paid the principal amount of Rs. 4,97,22,461.16/- and in this regard sent an email on 31.01.2024 informing the OC/R2 that there is no outstanding dues in their books of accounts and had also requested that the OC should also update its books and accounts accordingly and withdraw the compa....
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....hs, forty-four thousand and eight hundred only) and is well below the threshold of Rs 1 crore specified under Section 4 of the IBC. 17. The Respondent relies upon Rishabh Infra Through Hari Mohan Gupta vs Versus Sadbhav Engineering Ltd [Company Appeal (AT) (Insolvency) No. 1881 of 2024] wherein it has been held that invoices with interest clauses, which were not part of the formal agreement, are unenforceable. This judgment supports the case of the Respondent. 18. Accordingly, we agree with the submissions of the Respondent and also the findings of the Adjudicating Authority that no interest can be charged against the supply of goods and services for delayed payments until and unless there is an express agreement between the parties. We find justification in the claim of the Respondent that the interest claim was unilaterally imposed and lacked any contractual basis." 22. Counsel for the Appellant has further relied upon a decision in the case of Rohit Motawat (Supra) and has referred to para 10 which is reproduced as under:- "10. We have heard counsel for the parties and after perusal of record, are of the considered opinion that the impugned order is....
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.... will be charged as per the agreed terms whereas no agreed terms have seen the light of the day to enable the OC to claim interest as a part of debt. In this regard, the observation has been made, in the case of Comet Performance (Supra) by a three members bench of this Court, relying upon Rishabh Infra Through Hari Mohan Gupta Vs. Sadbhav Engineering Ltd., CA (At) (Ins) No. 1881 of 2024) in which it has been held that "invoices with interest clauses which were not part of the formal agreement are unenforceable". 27. Thus, in the given facts and circumstances, we are inclined to follow the decision of this Court in the case of Comet Performance Chemicals Pvt. Ltd. (Supra) and Rohit Motawat (Supra) in which it has been held that "the application for interest was not maintainable as the spirit of the legislation of the Code is for resolution of debt and not for recovery". 28. No other point has been raised. 29. In view of the aforesaid facts and circumstances, the present appeal is allowed and the impugned order is set aside. No costs. IAs, if any, are hereby closed. ============= Document 1 ARYAN ISPAT & POWER PVT LTD ATAPOST POMALO1,TEHS11-RRNGALI, SAMBALPUR 169....