TaxTMI 
TaxTMI 
2026 (1) TMI 397
X X X X Extracts X X X X
X X X X Extracts X X X X
....India Pvt. Ltd. Aggrieved by the impugned order, the present appeal has been preferred by the Appellant-Operational Creditor. 2. Coming to the chronology of events of this present matter, we notice that the Appellant-Operational Creditor had been engaged by the Respondent- Corporate Debtor for supply of chemicals and raw materials. The materials were supplied by the Appellant but as the Respondent had purportedly failed to discharge their payment obligations of an outstanding amount of Rs. 7,84,94,085/- which included the principal and interest component of Rs. 6,13,26,856/- and Rs. 1,71,67,229/- respectively, the Appellant had filed C.P No. 734 of 2021 under Section 9 on 22.11.2021 before the Adjudicating Authority to initiate CIRP against the Respondent. The Section 9 application was dismissed by the Adjudicating Authority on 16.10.2023 on the ground of non- maintainability by holding that the default had occurred based on invoices pertaining to the suspended period under Section 10-A of IBC. This Section 9 dismissal order was challenged by the Appellant before this Tribunal. This Tribunal observed that what was relevant to be seen was as to whether the outside Section 10-A pe....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of adjudication under Section 9 of the IBC is limited to determining whether an operational debt is due and payable and whether any default has occurred in relation to such debt and if the amount of default exceeds the statutory threshold outlined under Section 4 of the IBC. Once these conditionalities are established, the Adjudicating Authority is mandatorily required to admit the Section 9 petition as long as the Corporate Debtor fails to establish the existence of a pre-existing dispute or show any other legally sustainable defence which is well settled in terms of the judgment of the Hon'ble Supreme Court in Mobilox Innovations Pvt. Ltd. Vs Kirusa Software Pvt. Ltd. (2108) 1 SCC 353. 4. It was further submitted that in the present case, there is a clear admission of debt and default above Rs. 1 Cr. in terms of the invoices raised by the Operational Creditor and there being no grounds of pre-existing dispute raised by the Corporate Debtor, the Section 9 applicable should have been admitted. It was vehemently contended that the Adjudicating Authority has erroneously held that the outstanding liability is only Rs. 1.65 Cr. The Adjudicating Authority has failed to take into cog....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on appeal had been remanded on 09.07.2024 by this Tribunal to the Adjudicating Authority. Submission was pressed that even when the matter was remanded back to the Adjudicating Authority by this Tribunal, even at that stage the list of invoices submitted by the Operational Creditor in their Section 9 application was not interfered with. It was added that the Appellant has now raised the issue of modification of the invoices in Table-A and Table-B with respect to Section 10-A which cannot be agitated at this stage. 6. Submission was pressed by the Corporate Debtor that the Section 9 application was not filed with the purpose of resolution of the Corporate Debtor but for the purpose of recovery. It was asserted that the Adjudicating Authority had rightly taken notice that the Corporate Debtor had offered to make payment of Rs. 1.65 Cr. to the Operational Creditor to clear the outstanding liability in terms of the Table-B invoices which had been submitted by the Operational Creditor in the Section 9 application as invoices which fell outside the Section 10-A period. The Corporate Debtor had already demonstrated its bonafide intention to discharge its liability as it had tendered th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y. It was also asserted that when the matter had been considered by this Tribunal on 09.07.2024, this Tribunal had not looked into the number of invoices which fell beyond the Section 10-A period but had only looked into whether the invoices relied upon by the Operational Creditor crossed the threshold of Rs. 1 Cr. for the purpose of maintaining the Section 9 application. Since no finding had been returned by this Tribunal as such on individual invoices, there is no restriction operating on the Operational Creditor to identify the final set of invoices beyond the 10-A period basis which the operational debt claim could be quantified. It is also contended by the Appellant that the Adjudicating Authority has wrongly relied on the judgment of Pepsico India Holdings supra as the facts of that case differ from the facts of the present case. In that case, there was no principal amount which was due which is why the Operational Creditor was not allowed to agitate the interest component, whereas in the present case, the principal operational debt remains partly paid by the Corporate Debtor. Hence, the Operational Creditor was well within its rights to claim full dues and merely because ful....
X X X X Extracts X X X X
X X X X Extracts X X X X
....20 1740 4,43,137/- 4,43,137/- 25. 30.09.2020 1772 4,47,291/- 4,47,2911- 26. 06.10.2020 1793 3,75,911/- 3,75,911/- 27. 08.10.2020 1808 3,56,075/- 3,56,075/- 28. 11.10.2020 1820 2,31,867/-' 2,31,867/- 29. 15.10.2020 1828 4,48,146/- 4,48,146/- 30. 22.10.2020 1840 3,16,448/- 3,16,448/- 31. 07.11.2020 1873 5,80,942/- 5,80,942/- 32. 12.11.2020 1883 4,87,735/- 4,87,735/- 33. 18.11.2020 1890 2,69,419/- 2,69,419/- 34. 20.11.2020 1893 17,94,001/- 17,94,001/- 35. 22.11.2020 1896 1,98,743/- 1,98,743/- 36. 01.12.2020 1903 3,78,237/- 3,78,237/- 37. 04.12.2020 1905 5,68,940/- 5,68,940/- 38. 07.12.2020 1908 5,68,950/- 5,68,950/- 39. 10.12.2020 1911 5,68,950/- 5,68,950/- 40. 14.12.2020 1913 5,33,683/- 5,33,683/- 41. 17.12.2020 1919 22,19,119/- 22,19,119/- 42. 19.12.2020 1922 7,65,107/- 7,65,107/- 43. 28.12.2020 1940 5,11,4711- 5,11,471/- 44. 29.12.2020 1944 24,75,607/- 24,75,607/- 45. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Operational Creditor having expressly acknowledged at the time of filing Section 9 application that only 7 invoices amounting Rs. 1.65 Cr. fell outside the protective shield of Section 10-A, the Operational Creditor cannot be seen to claim subsequently that there were other invoices apart from the aforementioned 7 invoices which also fell outside the ambit of Section 10-A. This stand never having been taken by the Operational Creditor earlier either before the Adjudicating Authority or before this Tribunal cannot now alter their stand as it would be in direct contradiction to the submissions and pleadings made by the Operational Creditor before the Adjudicating Authority and this Tribunal earlier. The present claim of adding 2 more invoices to the earlier list of 7 invoices as invoices falling outside the Section 10-A period amounts to shifting the goal-post which cannot be accepted. This amounts to be an attempt to improving their own case to inflate the quantum of default and arm-twist the Corporate Debtor into parting with more than what was envisaged in the original Section 9 application. We are of the firm view that the Operational Creditor cannot now canvass for reopenin....