M/S Baroda Freight Carrier Through Its ... vs Resolution Professional Of M/S Sintex ...

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) (Insolvency) No. 1451 of 2022 IN THE MATTER OF: Baroda Freight Carrier Through its Authorised Representative Anjul Mangla ...Appellant Versus Ketulbhai Ramubhai Patel Resolution Professional of M/s Sintex BAPL Ltd. ...Respondent Present: For Appellant : Mr. Sanjeev Panda, Mr. Sumit Shukla, Advocates For Respondent : None.

ORDER

21.02.2023: Heard Learned Counsel for the Appellant.

This appeal has been filed against the order of the Adjudicating

Authority dated 11.10.2022 by which IA/64(AHM)2022 filed by the Appellant

has been rejected.

3. The Appellant filed the IA/64(AHM)2022 claiming the amount with

regard to transportation services provided to the Corporate Debtor for the

period January, 2021 to 28.06.2021. The CIRP against the Corporate Debtor

commenced on 18.12.2020. The Adjudicating Authority has rejected the

application were noticing the submission of the Respondent that amount of

the operational debt and cannot be treated as CIRP cost.

4. We have heard the Learned Counsel for the Appellant and perused the

record.

5. Inspite of notice having been issued and served to the Respondent, no-

one has appeared for the Respondent.

6. Learned Counsel for the Appellant submits that in the application filed

by the Appellant, it has been clearly mentioned that transportation services Company Appeal (AT) (Insolvency) No. 1451 of 2022 1 provided to the Corporate Debtor from the period January, 2021 to

28.06.2021 which has been specifically pleaded and the amount has been

claimed for the aforesaid. In the prayer made in the application, following

prayer has been made by the Appellant:-

"The applicant hereby pray before this

Hon'ble Adjudicating Authority that it may

graciously be pleased to:

i. Take the present application on

record and issue notice to the respondent(s);

and/or;

ii. To take note of the fact that the

Respondent has not complied with the

directions of the orders passed by this

Hon'ble Tribunal on 29th June 2021.

iii. Take note of the conduct of the

Respondent no. 1 who has acted against the

provisions of IBC, 2016 and CIRP Regulations

and pass necessary order(s)/direction(s)

against the respondent no. 1 including

directing the respondent no. 1 to take steps to

make the payment of unpaid CIRP cost

2017140/- (Rupees Twenty Lakhs Seventeen

Thousand One Hundred and Forty only) along

with interest towards transportation services

provided by the applicant to the corporate Company Appeal (AT) (Insolvency) No. 1451 of 2022 2 debtor during the CIRP period as mentioned in

the present application and/or

iv. Pass any such further

order(s)direction(s) which may be deemed fit

in the interest of justice.

It is prayed accordingly."

7. The Adjudicating Authority in its order while rejecting the application,

has made following observations:-

"This application is filed by Baroda Freight

Carrier, one of the Operational Creditors of the Corporate

Debtor to treat sum of Rs. 2,17,140/- as the CIRP cost.

In fact, CIRP of the Corporate Debtor is continued. Order

of withdrawal dated 29.06.2021 has been stayed by the

Hon'ble NCLAT and stay is still continued. None

appeared for the Operational Creditor.

Learned Counsel for the Respondent pointed out that

how the amount claimed could be CIRP cost. The amount

as claimed appeared to be the operational debt and

hence cannot be treated as CIRP at this stage.

In view of the above, this application is not

maintainable and stands disposed of."

8. When the Appellant in its application has clearly mentioned that the

amount is being claimed for service provided from January, 2021 to June,

2021, there could not be any question of it being operational debt and

Adjudicating Authority ought to have been considered the application on Company Appeal (AT) (Insolvency) No. 1451 of 2022 3 merit and the reasons given by Adjudicating Authority for rejecting the

application are unsustainable. In result, the Appeal is allowed. The

impugned order dated 11.10.2022 is set aside and the IA/64(AHM)2022 is

revived before the Adjudicating Authority to be decided in accordance with

law.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical)

ss/nn

Company Appeal (AT) (Insolvency) No. 1451 of 2022 4