M/S. Daya Engineering Works Pvt. Ltd vs M/S. Uic Udyog Ltd

M/s. Daya Engineering Works Pvt. Ltd. ...Appellant

Vs.

M/s. UIC Udyog Ltd. ...Respondent

Present: For Appellant: - Mr. Rohit Choudhary and Ms. Ankit Patnaik, Advocates.

ORDER

26.07.2018─ The Appellant- 'M/s. Daya Engineering Works Pvt.

Ltd.' invested money with 'M/s. UIC Udyog Ltd.' for supplying of

materials. The materials valued Rs. 4,02,33,473/- (Rupees Four Crore

Two Lakh Thirty-Three Thousand Four Hundred Seventy-Three Only)

were supplied but material of the balance amount Rs. 12,09,443/-

(Rupees Twelve Lakh Nine Thousand Four Hundred Forty-Three Only)

was not supplied.

2. According to the Appellant, the Respondent is liable to pay back

the balance amount of Rs. 12,09,443/- with @ 24% interest.

3. With the aforesaid claim, the Appellant filed an application under

Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter

referred to as "I&B Code'). The Adjudicating Authority (National Company

Contd/-............

-2-

Law Tribunal), Kolkata Bench, Kolkata, by impugned order dated 16th

May, 2018 rightly held that the Appellant do not come within the meaning

of the 'Operational Creditor' and rejected the application.

4. During the submission, learned counsel for the Appellant

submitted that the Respondent- 'Corporate Debtor' has retained the

amount for its commercial purpose and used the same and, therefore,

the Appellant has claimed interest at the rate of 24% per month.

Submission is made that the Appellant in such case should be treated to

be a 'Financial Creditor' within the meaning of Section 5(7) read with (8)

of the 'I&B Code'. However, we are not expressing any opinion with regard

to such issue as to whether Appellant is 'Financial Creditor' or not, as the

claim was not filed under Section 7 of the 'I&B Code'. If the Appellant

feels that it was the case under Section 7 and wrongly filed application

under Section 9 it may move in accordance with law before the

Adjudicating Authority who may decide such claim independently

uninfluenced by the impugned order dated 16th May, 2018.

5. The Appeal stands disposed of with aforesaid observations. No cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member(Judicial) Ar/uk Company Appeal (AT) (Insolvency) No. 394 of 2018