Netafim Agricultural Financing Agency ... vs Baliraja Sakhar Karkhana Limited

Netafirm Agricultural Financing Agency Pvt. Ltd. ...Appellant

Versus

Baliraja Sakhar Karkhana Ltd. ...Respondent

Present: For Appellant: Mr. Gaurav Mitra, Mr. Siddharth S. Chapalgaonkar, Mr. Adit Singh, Mr. Sameer Walimbe, Mr. Vishal Kamble, Advocates.

For Respondent: Mr. Prakhar Tandon and Mr. Prashant Trivedi, Advocates.

ORDER

03.05.2023: I.A. No. 1823 of 2023: This is an application praying for

condonation of 14 days delay in filing the Appeal. The ground taken in the

application is that the order was uploaded on the website on 06.01.2023 and

thereafter Appellant obtained the copy and was under bonafide impression

that appeal can be filed within 30 days from uploading of order, due to which

delay was caused. Cause shown sufficient, delay in filing the appeal is

condoned. I.A. No. 1823 of 2023 stands disposed of.

2. Heard learned counsel for the Appellant as well as learned counsel

appearing for the Respondent. This Appeal has been filed against the order

dated 23.11.2022 by which the application filed under Section 7 by the

Appellant has been rejected on the ground that it does not fulfil the threshold

limit of Rs.1 Crore.

Cont'd.../ -2-

3. Learned counsel for the Appellant challenging the impugned order

contents that in the application under Section 7 total debt claimed was

Rs.1,33,68,915/- which also included the interest. It is submitted that in the

Deed of Guarantee the amount of interest was also contemplated, hence, for

computing the total debt interest is also to be looked into. The Adjudicating

Authority without adverting to the above only referred to Principal Amount

and held that application does not fulfil the threshold.

4. Learned counsel for the Respondent submits that there were other

issues including limitation in the Section 7 application, which may be looked

into by this Tribunal.

5. We have considered the submissions of learned counsel for the parties

and perused the record.

6. The copy of application under Section 7 has been annexed alongwith the

Appeal which indicate that the amount of Principal and Interest added is

Rs.1.33 Crore i.e. beyond the minimum threshold required. Learned counsel

for the Appellant has referred to Deed of Guarantee, which mention about the

interest on default. We, thus, are of the view that for finding out threshold

both amount Principal and Interest has to be computed. The Adjudicating

Authority thus committed error in rejecting the application under Section 7

for not fulfilling threshold. So far as submission of learned counsel for the

Respondent that there are other issues including limitation, that are the issues

Company Appeal (AT) (Insolvency) No.408 of 2023 -3-

which may be gone into by the Adjudicating Authority, when application under

Section 7 is heard.

7. In result, we allow the Appeal. Set aside impugned order dated

23.11.2022 passed by the Adjudicating Authority and remit the matter to the

Adjudicating Authority to hear the Section 7 application afresh. We make it

clear that we are not expressing any opinion on the merits of the case, which

may be looked into by the Adjudicating Authority in the Section 7 application.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No.408 of 2023