Rajkishore Sukhdeo Mundra vs Prashant D. Agarwal Karta Of M. S. ...

1

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI COMPANY APPEAL (AT)(INS) NO.705/2024 (Arising out of judgement and order dated 02.04.2024 passed by National Company Law Tribunal, Ahmedabad Bench in CP-(IB) -69 of 2021) In the matter of: Rajkishore Sukhdeo Mundra 10 Kewal Kunj, NS Road No.9 Jvpd Scheme 18, Vile Parle -West, Mumbai 400049 Appellant Vs 1. Prashant D Agarwal, Karta of M/s MS Enterprises, 310, Shyam Chambers, Opp Sub Jail Surat 395002

2. Omkar Maloo Interim Resolution Professional, M/s Avani Yarns Private Ltd 403, shaival Plaza, Gujarat College Road, Ellisbridge, Ahmedabad 380006 Respondents For Appellant: Mr. Dhiren R Dave, Advocate. For Respondent: Mr. Gaurav Mitra and Mr. Karan Grover, Advocates.

JUDGEMENT

JUSTICE YOGESH KHANNA, MEMBER (JUDICIAL) This appeal is filed against an impugned order dated 02.04.2024 passed

in CP(IB) No.69 of 2021 by the Ld. NCLT, Ahmedabad Bench. The brief facts of

the case are Corporate Debtor, M/s Avani Yarns (P) Ltd and the Respondent No.1 2

(Operational Creditor) had entered into a business transactions of buying and

selling chemicals from the years 2017 to 2020. The operational creditor-R1

supplied goods to the Corporate Debtor and there was some outstanding. As per

the appellant on 30.01.2021 the last payment was made. The demand notice

dated 28.12.2020 was dispatched on 28.01.2021 and was received by the

Corporate Debtor on 02.02.2021. On 12.02.2021 the Corporate Debtor had

replied to demand notice. However, on 01.04.2021, the CP(IB) No.69 of 2021

was filed.

2. Following issues were raised by the learned counsel for the appellant on

22.07.2025 before this Appellate Tribunal viz a) qua the applicability of Section

10A of IBC as he submitted that the date of default as declared in Part IV was

29.12.2020; and b) prior to the service of demand notice dated 29.12.2020 the

Respondent had already made a payment of Rs.3 lakhs and thus principal

outstanding amount at the time of filing of petition was Rs. 97 lakhs only, much

less below the bench mark of Rs.1 crore required at the time of filing of the petition

and lastly that there was no agreement for payment of interest.

3. It is alleged by the learned counsel for the appellant on date of filing of

company petition the outstanding amount was less than Rs. 1 crore and had

referred to reply dated 12.02.2021 to the legal demand notice dated 29.12.2020

where it categorically mentioned there was no contract for payment of interest

between the parties and the extract of ledger amount, as attached alongwith the 3

notice, specifically reflects in past too, no interest was ever paid or claimed by

the Respondent. It was also argued the ledger attached with the legal notice did

not reflect true and correct amount, as an amount of Rs.303963/- paid by the

Corporate Debtor on 30.01.2021 was never shown.

4. Reference was made to Part IV of the Company Petition, wherein

outstanding principal amount was shown to be Rs.1,00,42,977/- alongwith

some interest over it. It is argued even in Part IV a wrong figure of Rs.1 crore

approximately was shown to be due from 29.12.2020.

5. Reference was also made to an affidavit filed by the respondent herein

before the Ld. NCLT which showed an amount of Rs. 97,19,111/- was due as on

21.01.2020 and if one deducts an amount of Rs.3,03,963/- then the total

outstanding of principal amount would come to Rs. 94,15,150/-, thus below the

threshold limit, hence the Company Petition ought to have been dismissed as

being not maintainable.

6. The learned counsel for the appellant had though pointed out to an invoice

at Page 67-Annexure D to the appeal, of dated 29.09.2018 wherein the

signatures of the appellant are not there, hence it was argued since there was

no written agreement to make payment of interest, it could not have been made

a part of the petition to bring the outstandings above the threshold of Rs.1 crore

at the time of filing of the petition and the account statement of the appellant,

as maintained by the Respondent firm, filed at Page 70 of the appeal paper book

also shows the closing balance as on 01.04.2020 to be Rs.97,39,013/-. 4

7. In support of his argument the learned counsel for the appellant relied

upon the reply sent by the Corporate Debtor/R=2 to the legal notice dated

29.12.2020 issued by the Operational Creditor wherein the Corporate Debtor

had categorically denied of any agreement qua payment of interest.

8. The learned counsel for the appellant relied upon M/s Amsons

Communication Pvt Ltd Vs ATS Estates Pvt Ltd, Company Appeal (AT)(Ins)

No.540/2020; Ms Manju Agarwal Vs M/s Shri Mani Tradelink Ltd & Ors,

Company Appeal (AT)(Ins) No.1203/2022; and Mr Rohit Motawat Vs Madhu

Sharma, Company Appeal (AT)(Ins) No.1152/2022 to say if there was no

agreement qua payment of interest, the insolvency proceedings cannot be

initiated only on the interest due. Heard.

9. We have gone through the cited judgements with the help of the learned

counsel for the appellant himself and found in all these judgements the principal

amount stood paid and whereas the dispute between the parties was only qua

payment of interest and thus it was held there could not be any proceedings filed

under the IBC, purely for recovery of the interest, as IBC is not for recovery but

is a different code altogether.

10. Further, a bare perusal of Part IV of the Insolvency Petition would show an

amount of Rs.1,00,42,977/- was an amount claimed to be in default as on

29.12.2020 but the date of default on which the default had occurred is stated

to be 19.04.2019, hence beyond the purview of Section 10A of the Code. We also

are not inclined to accept the argument of the appellant that Invoice No.4-174 to 5

4-179 stood paid and bare perusal of ledger at page 70 of appeal paper book does

not support the submission of the appellant. Further though principal amount

was mentioned as Rs.1,00,42,977/- but as per the terms of the invoices, after

allowing 60-day credit period, the interest was chargeable @24% per annum, and

thus the amount of interest claimed came to be Rs.37,16,274/- and, therefore,

the outstanding amount was shown to be Rs.1,37,59,251/- as on 29.12.2020 in

Part IV.

11. We have also gone through reply filed by the Respondent No.1 and the

documents annexed viz invoices of the year 2019 from Pages No.105 till 209 as

well as corresponding purchase orders from Pages No.20 to 104 and we find all

such invoices have been duly signed on behalf of the Corporate Debtor/R-2 and

as per invoices an interest @ 24% per annum was to be charged after the due

date of the bill viz 60 days from the purchase order. The statement of account

relied upon by Respondent No.1/the Operational Creditor is at Pages No.82 and

83 of the appeal paper book and the said statement duly reveals the date of

invoices, invoices number, invoices amounts, due dates and the interest

charged, as per the terms agreed between the parties per invoices and

accompanying purchase order(s) and thus amount due came to be more than

Rs.1 crore at the time of filing the petition.

12. Thus we do not find any illegality in the impugned order. The appeal has

no merit and accordingly it is dismissed.

6

13. Pending application viz I.A. No. 2534/2024 is also disposed of.

(Justice Yogesh Khanna) Member (Judicial)

(Mr Ajai Das Mehrotra) Member (Technical)

Dated: 16.02.2026 bm