Prs Packtech Systems Pvt Ltd vs Subros Limited

PRS Packtech Systems Pvt. Ltd. ...Appellant

Versus

Subros Ltd. ...Respondent

Present: For Appellant: Mr. Prashant Mohan Mehta and Mr. Himanshu Kapoor, Advocates.

For Respondent: Mr. P. V. Kapur, Sr. Advocate with Mr. Rohit Gandhi, Mr. Sidhant Kapur, Ms. Kaveri Kapur, Advocates.

ORDER

(Virtual Mode)

09.02.2022: Heard learned counsel for the Appellant as well as learned

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

order and judgment dated 19.02.2020 passed by the Adjudicating Authority

(National Company Law Tribunal), New Delhi Bench by which order the

application filed by the Appellant - Operational Creditor under Section 9 of the

Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'Code') has

been rejected.

2. The Appellant claiming to be Operational Creditor has filed an

Application claiming default in payment of Principal amount of Rs.40,40,057/-

outstanding from 2009 and a sum of Rs.71,80,763/- towards interest. The

Adjudicating Authority by its order dated 20.05.2019 directed the Operational

Creditor to give details of all invoices alongwith the amount which is being

Cont'd.../ -2-

claimed by the Operational Creditor. In pursuance to the order dated

20.05.2019, detailed affidavit dated 13.06.2019 has been filed by the

Operational Creditor alongwith which he filed the details of all invoices from

17.03.2009 to 17.10.2016 which were issued by the Operational Creditor,

numbering to 289 for a total amount of Rs.29,24,394/-. During the

proceeding, the Corporate Debtor made a payment of Rs.29,24,394/- without

prejudice. The Adjudicating Authority noticing aforesaid fact that entire

payment has been made rejected the application.

3. Learned counsel for the Appellant contends that the Adjudicating

Authority committed error in observing that certain invoices were barred by

time and invoices have taken for the period three years preceding to

proceedings under Section 9. He submits that said invoices were all invoices

and there was no computation of invoices of only three years prior to

proceedings filed under Section 9. The Appellant is entitled for interest also.

4. Learned counsel for the Respondent refuting the submissions of the

Appellant contends that although the invoices details of which are filed, some

of the invoices were barred by time but the Corporate Debtor without

prejudice, avoiding further dispute, tendered a payment of Rs.29,24,394/-. It

also included the payment of invoices which has become barred by time and

only an amount of Rs.1.06 lakhs was within limitation.

Company Appeal (AT) (Insolvency) No. 1086 of 2020 -3-

5. We have heard learned counsel for the parties and perused the record.

When order dated 20.05.2019 was passed by the Adjudicating Authority, the

Appellant filed an affidavit annexing all the details of invoices, total of which

was Rs.29,24,394/- and which amount was paid by the Operational Creditor,

there being no debt payable, application under Section 9 cannot have

proceeded, therefore, no error has been committed by the Adjudicating

Authority in rejecting the Application filed by the Operational Creditor.

6. Learned counsel for the Appellant submitted that he may be permitted

to withdraw this Appeal with liberty to take such remedy in law as permissible.

7. In view of the fact that parties have made their submissions on merits,

there is no justification in permitting withdrawal of Appeal at this stage.

Prayer is rejected. Appeal is dismissed.

8. Learned counsel for the Appellant further submitted that there was an

OTS settlement proposal dated 05.03.2017. Learned counsel for the Appellant

fairly accepted that the said documents were not before the Adjudicating

Authority. Thus, we have no reason to look into that or to enter into

consideration of said sumission.

9. Counsel for the Respondent submits that in the Balance Sheet of the

Appellant the amount due was Rs.29,24, 394/- and despite the said amount

reflected in the Balance Sheet, the Appellant filed application under Section 9

Company Appeal (AT) (Insolvency) No. 1086 of 2020 -4-

giving an astronomical figure of Rs.71,80,763/- with object to arm-twist and

coerce the Respondent to make the payment.

10. In view of the above, we do not find any ground to entertain this Appeal.

Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Dr. Ashok Kumar Mishra] Member (Technical)

[Dr. Alok Srivastava] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No. 1086 of 2020