Rajendra Patil vs Rajmarg Infra Private Limited And Anr

IN THE MATTER OF: Rajendra Patil ...Appellant

Versus

Rajmarg Infra Pvt. Ltd. & Anr. ...Respondents

Present: For Appellant : Mr. M.V. Mukunda, Mr. Shrirang Verma & Mr. K. Parameshwar, Advocates.

For Respondents : Appearance not marked.

ORDER

(Virtual Mode)

[Per : Justice Rakesh Kumar Jain (Oral)]

28.11.2024 This appeal is directed against the order dated

08.09.2023 passed by National Company Law Tribunal, Mumbai Bench- IV

('Tribunal') by which an application filed under Section 9 of the Insolvency

and Bankruptcy Code, 2016 ('Code') in CP (IB) No. 1403/MB-IV/ 2020 by

Respondent No. 1 for the resolution of an amount of Rs. 1,27,41,740/- i.e.,

Rs. 1,06,77,479/- towards principal amount and Rs. 20,64,261/- towards

interest calculated @ 12% p.a. on the date of default i.e., 16.04.2019 has

been admitted.

2. At the time of preliminary hearing held on 18.09.2023, this court

passed the following order :-

"Learned counsel for the Appellant submits that the Adjudicating Authority itself in its order dated 09.03.2023 noted that amount of Rs.1,06,19,000/- was paid which was Principal Amount. It is submitted that however, in the order dated 08.09.2023 admitting Section 9 application, their payment as recorded in the order dated 08.09.2023, has not been taken note of.

Learned counsel for the Respondent prays that Appeal be adjourned to 21.09.2023.

As prayed, Appeal is adjourned to 21.09.2023.

In the meantime, no further steps shall be taken in pursuance of order dated 08.09.2023."

3. Counsel for the Appellant has argued that the Tribunal has not

applied its mind to various aspects of this case while passing the order of

admission.

4. The first point raised by the Appellant is that the entire case of

Respondent No. 1 is based upon only on one invoice (attached as annexure

A-3 at page number 49 of the Appeal Paper Book) as per which the amount

payable by the Appellant to Respondent No. 1 is Rs. 1,52,99,478.80/-.

5. It is submitted that since the Appellant has already made payment to

Respondent No. 1 of Rs. 1,06,19,000/-, therefore, the amount left out to be

paid is less than the threshold limit of Rs. 1 Crore and hence the application

filed under Section 9 is not maintainable.

6. The second aspect of this matter, argued by the Appellant, is that

there was no commitment of interest which has been calculated by

Respondent No. 1 to the tune of Rs. 20,64,261/-, calculated @ 12% p.a., because neither the interest has been agreed to be paid in invoice nor in the

Memorandum of Understanding.

7. The Appellant has submitted that the Tribunal has relied upon a

letter dated 21.07.2019, wherein the Appellant has allegedly admitted that

there is a liability which he has to meet.

8. The question raised by the Appellant is that, in Para 5 of the

Impugned Order dated 08.09.2023, the Tribunal has observed that :-

"5. As per the material on record this Bench is of the view that, on perusal of the documents submitted by the Operational Creditor, it is clear that Operational Debtor amounting to more than Rs. 1,00,00,000/- (Rupees One Crore Only) is due and payable by the Corporate Debtor to the Applicant. Since, the debt and default exist and no pre-existing dispute has been brought to our notice, it is a fit case for admission u/9 of IBC, 2016."

9. Counsel for the Appellant has submitted that the Impugned Order

suffers from non-application of mind and has been passed without

recording a firm finding as to how the Petition is maintainable if Respondent

No. 1 has not crossed the threshold limit of Rs. 1 Crores as stipulated under

Section 4 of the Code.

10. In Reply, Learned Counsel appearing on behalf of the Respondent has

submitted that there is no error in the Impugned Order. He has tried to

justify the Impugned Order by referring to various documents on record to

submit that the Appellant was liable to pay more than Rs. 1 Crore.

11. We have heard Counsel for the Parties and after perusal of record, are

of the considered opinion that whatever is being argued before us by the

Respondent is not part of the Impugned Order nor the Learned Tribunal has

taken into consideration the fact that the Appellant has already paid

Rs. 1,06,19,000/- out of Rs. 1,52,99,478.80/- which brings down the

amount of debt to a sum approximately Rs. 48 Lakhs which is less than the

threshold limit of Rs. 1 Crore and therefore the petition was not

maintainable.

12. In view of the aforesaid facts and circumstances, we feel that it would

be just and expedient if the Impugned Order is set aside and the matter is

remanded back by restoring CP (IB) No. 1403/MB-IV/ 2020 to its original

number, calling upon the Learned Tribunal to decide it again after taking

into consideration the entire material taken on record to hold, as to how the

petition is maintainable without crossing the threshold limit.

13. With these observations, the present appeal is allowed, the Impugned

Order is set aside, the original petition is restored and the matter is

remanded back to the National Company Law Tribunal, Mumbai Bench- IV

to decide it again after hearing both the parties and taking into

consideration the entire material on record, especially qua the issue of

threshold.

14. The parties are directed to appear before the Tribunal on 18.12.2024.

15. It is made clear that we have not made any observation on the merits

of the case which is left open to the Tribunal to decide.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

[Mr. Indevar Pandey] Member (Technical) Sim/RR