Akj Engineers Private Limited vs Simplex Infrastructures Limited
- CitationCompany Appeal (AT) (Insolvency) No. 1830 of 2024
Ratio decidendi
The rule this decision rests on
Where the aggregate of an operational creditor's claim, after excluding amounts held time-barred, falls below the threshold prescribed under Section 4 of the Insolvency and Bankruptcy Code, 2016, an application under Section 9 is liable to be rejected; the Adjudicating Authority is entitled to exclude from the computation those individual dues which it finds barred by limitation, where the parties' own agreed statement of account establishes the dates of the relevant payments. An appellate tribunal will not interfere with an order rejecting a Section 9 application on this ground where the adjudicating authority's computation of the amount due, by reference to the payment dates captured in the record, discloses no error. A rejection on this ground does not bar the operational creditor from pursuing its contractual dues through any other remedy available under law, since the insolvency order determines only the availability of the Section 9 remedy and not the underlying liability.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE MATTER OF: AKJ Engineers Pvt Ltd. ...Appellant Versus Simplex Infrastructure Ltd. ...Respondent
Present: For Appellant : Mr. Saikat Sarkar and Mr. Saurav Jain, Advocates.
For Respondent :
ORDER
(Hybrid Mode)
17.10.2024 : I.A. No. 6699 of 2024
1. This is an Application praying for condonation of delay.
2. Learned Counsel for the Appellant submits that delay of 22 days has
been wrongly mentioned in the Application, whereas, the actual delay is 9
days only. The Order Impugned was passed on 23.07.2024, the Certified
Copy was applied on 22.08.2024 and the copy was ready on 26.08.2024 and
the Appeal was filed on 05.09.2024.
3. Giving the benefit of Certified Copy of the Order, we find that delay in
filing the Appeal is only 9 days.
4. Sufficient cause has been shown in Paragraph 2 of the Application.
Delay condoned.
Comp. App. (AT) (Ins.) No. 1830 of 2024
1. This Appeal has been filed against an Order dated 23.07.2024 passed
by the Learned Adjudicating Authority (National Company Law Tribunal, Division Bench, Court - I, Kolkata) by which Section 9 Application filed by the
Appellant has been rejected.
2. In Paragraph 25 of the Order, the Adjudicating Authority has made
following observations:
"25. From the submissions made by the parties and the documents on record, we find that there is no pre- existing dispute on the issue of the payments being made bill wise or on an adhoc basis. Since the table at page 26 of the Petition is admittedly agreed by both the parties, we see that the Scenario (i) above is applicable and as such the inference drawn on the basis of postulate (i) above holds well. Simply put, the dues as S.No. 1,5,6,8,9,17-21 become time barred as the petition is filed on 28.02.2023 while the period of limitation gets over duly considering the effect of Suo Motu writ petition no 3 of Hon'ble Supreme Court of India. That being so, the resulting amount works out to Rs. 77,35,979/- and the same being less than the threshold of Section 4, the petition deserves to be rejected."
3. Learned Counsel for the Appellant challenging the Order submits that
there was running account with regard to all projects and the Adjudicating
Authority committed error in taking the view that certain payments were
barred by time.
4. It is submitted that the email which was sent by the Corporate Debtor
on 26.07.2022 was designed to defeat the rights of the Appellant.
5. We have considered the submissions and perused the record.
6. According to the details as captured by the Adjudicating Authority in
Paragraph 21 itself it is clear that payments relate to different projects and
the outstanding amount and as last payment date has also been indicated in
Paragraph 23 from which the Adjudicating Authority has come to the
Comp. App. (AT) (Ins.) No. 1830 of 2024 & I.A. No. 6699 of 2024 2 of 3 conclusion that total amount due of Rs. 77,35,979/- is below the threshold
for filing Section 9 Application.
7. We do not find any error in the Order passed by the Adjudicating
Authority.
8. The Adjudicating Authority itself has observed in Paragraph 26 that
Petitioner shall be at liberty to seek other remedies that may be available to it
under any other law.
9. We make it clear that in any other remedy as taken by the Appellant for
its contractual dues, the Order passed by the Adjudicating Authority may not
come in the way of the Appellant.
With these observations, we dismiss the Appeal.
[Justice Ashok Bhushan] Chairperson
[Barun Mitra] Member (Technical)
[Arun Baroka] Member (Technical) himanshu/nn
Comp. App. (AT) (Ins.) No. 1830 of 2024 & I.A. No. 6699 of 2024 3 of 3
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