Miss Lucy
← All judgments

Delta Total Facilities Private Limited vs Jyoti Structures Limited

National Company Law Appellate Tribunal20 July 2023Ashok Bhushan

Ratio decidendi

The rule this decision rests on

For the purpose of the threshold under Section 4 of the Insolvency and Bankruptcy Code, 2016, the amount of a operational debt claimed in an application under Section 9 includes both the principal amount of the debt and the interest on delayed payment where such interest is stipulated in the contract or invoice; the aggregate of principal and such interest is to be considered in determining whether the minimum default threshold is met. Where the Adjudicating Authority rejects a Section 9 application for failure to meet the default threshold on the basis that the principal alone falls below it, without considering contractually stipulated interest included in the claimed amount, the rejection is erroneous, and the application must be revived for adjudication on its merits in accordance with law, without any opinion being expressed on the other issues raised.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) (Insolvency) No.1512 of 2022 IN THE MATTER OF: Delta Total Facilities Pvt. Ltd. ...Appellant Versus Jyoti Structures Ltd. ...Respondent Present: For Appellant: Mr. Rohan Thawani and Mr. Pratul Singh, Advocates. For Respondents: Mr. Vaijayant Paliwal and Ms. Charu Bansal, Advocates

ORDER

20.07.2023: Heard Learned Counsel for the Appellant and Respondent.

This appeal has been filed against the order dated 31.10.2022 by which

order the Adjudicating Authority has rejected Section 9 application on the

ground that it does not fulfil the threshold of Rs. 94,68,029/-.

2. Learned Counsel for the Appellant submits that in part-IV of the section

9 application the claim was Rs. 1,20,50,861/- which comprised the principal

amount of Rs. 94,68,029/- with interest of Rs. 25,82,832/-.

3. Learned Counsel for the Appellant has also referred to the Security

Service Agreement dated 19.07.2017 under which there was specific clause

of interest @ 18% to service provider in case of delayed payment beyond the

due date.

4. Learned Counsel for the Appellant has relied on the Judgement in

Prashat Agarwal Vs. Vikash Parasrampuria. of this Tribunal in

Company Appeal (AT)(Ins.) No. 690/2022.

Company Appeal (AT) (Insolvency) No.1512 of 2022 1 This tribunal in the said judgement has laid down the following in paragraph

(vi):-

"vi) It is, therefore, clear from these facts that

the total amount for maintainability of claim will

include both principal debt amount as well as interest

on delayed payment which was clearly stipulated in

the invoice itself. It is noted that the total principal

debt amount of Rs. 97,87,220/- along with interest

the total debt makes total outstanding as Rs.

1,60,87,838/- . Thus, the total debt outstanding of OC

is above Rs. 1 crore as per requirement of Section 4

IBC read with notification No. S.O 1205 (E) dated

24.3.2020 (Supra), and meets the criteria of Rs.

1crore as per Section 4 of IBC and Application is

therefore maintainable in present case. We concur

with the orders of Adjudicating Authority on this issue

also. (vii) We, therefore, do not find any merit in the

present appeal and dismiss the same".

5. In the present case, the claim of the Appellant cannot be said to be not

fulfilling Rs. one crore and the Adjudicating Authority committed error in

rejecting section 9 application.

6. Learned Counsel for Respondent submits that there are other issues in

the application which needs to be considered.

Company Appeal (AT) (Insolvency) No.1512 of 2022 2

7. In view of the above, we set aside the order dated 31.10.2022 and revive

the application before the Adjudicating Authority to be heard and decided in

accordance with law. It is made clear that we are not expressing any opinion

on the merits of the application and contention of both the parties are left

open.

The Appeal is allowed accordingly.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical)

ss/nn

Company Appeal (AT) (Insolvency) No.1512 of 2022 3

This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.

Research this judgment with Miss Lucy

Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.

Try Miss Lucy free