Bhotika Trade And Services ... vs Avinash Em Projects Private Limited

IN THE MATTER OF: Bhotika Trade & Services Pvt. Ltd. ....Appellant

Vs.

Avinash EM Projects Pvt. Ltd. ....Respondent

Present: For Appellant: Mr. Anup Kumar D. Sayare, Advocate For Respondent: Ms. Prakriti Joshi, Advocate

ORDER

24.04.2023: Heard Learned Counsel for the appellant. This appeal has

been filed against the order dated 14.11.2022 passed by the Adjudicating

Authority (National Company Law Tribunal, New Delhi Bench, Court-II) by

which Section 9 application filed by the appellant has been rejected on the

ground that it is less than the threshold prescribed under Section 4. The

appellant has filed the application under Section 9 claiming total amount of

Rs.1,61,12,474.86 which included the interest amount.

2. Adjudicating Authority took the view that there is no agreement filed by

the appellant where parties have agreed to interest, hence, the interest cannot

be included in the claim and the principle amount being less than 1 crore,

application is rejected.

Cont'd..../ -2-

3. Learned Counsel for the appellant challenging the order submits that

there were several letters on the record including the letters dated 15.03.2017

& 20.02.2020 which are at page 76 & 77 of the paper book where the

Corporate Debtor has confirmation of debit balance which included also the

amount of the interest. In letter dated 15.03.2017 following was stated:

"As requested by you vide your letter dated 10.03.2017, we

hereby confirm and admit that Debit balance as per our record

for Bhotika Trade & Serv. Pvt. Ltd. is Rs. 51,90,882/- and

interest of Rs. 48,45,033.46."

4. Learned Counsel for the respondent fairly submitted that the letters were

not denied they were issued in the normal practice of the business.

5. Be that as it may there being material on record to indicate that

Corporate Debtor has issued the debit balance which include the interest, the

application filed by the appellant could not have been rejected on the ground

i.e. less than threshold.

6. Adjudicating Authority itself has noticed the Judgment of this Tribunal

in Prashant Agarwal vs. Vikash Parasrampuria & Anr. in paragraph 15 which

clearly support the case of the appellant.

7. We thus are of the view that the order of Adjudicating authority rejecting

the application cannot be sustained, we set aside the order impugned dated

Company Appeal (AT) (Ins.) No. 83 of 2023 -3-

14.11.2022, revive the application before the Adjudicating Authority to be

heard afresh in accordance with law.

8. Learned Counsel for the parties may appear before the Adjudicating

Authority on 15.05.2023, before that copy of this order may also be filed along

with an application.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical)

sa/nn

Company Appeal (AT) (Ins.) No. 83 of 2023