Modi Oil And General Mills Through Its ... vs Tirupati Coatings Pvt Ltd

Modi Oil and General Mills Through its Partner Ashok Kumar Modi ...Appellant

Versus

Tirupati Coatings Pvt. Ltd ...Respondent

Present: For Appellants: Ms. Eshna Kumar, Ms. Prachi Bhatia and Mr. Akshay Goel, Advocates. For Respondent:

ORDER

13.09.2022: Heard learned counsel for the Appellant. This Appeal has

been filed against the order dated 12.07.2022 by which order the Adjudicating

Authority (National Company Law Tribunal), New Delhi, Bench-IV has

rejected the Section 9 application of the Appellant holding it to be barred by

Section 10A.

2. Learned counsel for the Appellant submits that there was running

account between the parties and the date of default as claimed in the

application was 28.03.2021. Learned counsel for the Appellant further

submits that Respondent-Corporate Debtor had not even disputed the date of

default.

3. We have considered the submissions of learned counsel for the

Appellant and perused the record.

Cont'd.../ 2

4. The Section 9 application was filed on the basis of 16 invoices for an

outstanding amount of Rs.1,15,32,156/-. In Para 9 of the judgment of the

Adjudicating Authority, the Adjudicating Authority has noticed the date of

each invoice and the date of default which was calculated as per case of the

Appellant that modality of clearance was agreed as 70 days, as claimed in the

application. When we look into the date of invoice and date of default after

70 days, for 15 invoices default fall between 21.01.2021 to 11.03.2021 i.e.

period when Section 10A bared initiation of any proceeding under Section 9

for the default during the said period.

5. Learned counsel for the Appellant sought to contend that the

Adjudicating Authority suo-motu could not have gone into and find out as to

what the date of default is. We do not find any substance in this submission.

When Section 10A bars the application, Adjudicating Authority was well

within its rights to examine and give findings as per the application and

records brought in by the Appellant. We, thus, do not find any error in the

order of the Adjudicating Authority rejecting Section 9 application filed by the

Appellant as barred by Section 10A of the I&B Code. The Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No. 1064 of 2022