Rashi Peripherals Private Ltd vs Savera Digital India Private Limited

IN THE MATTER OF: Rashi Peripherls Pvt. Ltd. ...Appellant Versus Savera Digital India Pvt. Ltd. ...Respondent

Present:

For Appellant : Mr. Mudit Sharma and Ms. Nandini Sharma, Advocates.

For Respondents : None.

ORDER

21.02.2023: Heard Learned Counsel for the Appellant.

This appeal has been filed against the order dated 01.08.2022 passed

by the 'National Company Law Tribunal', Kolkata Bench-I, Kolkata in CP

(IB)97/KB/2021 by which order the application filed by the Appellant u/s 9

has been rejected as barred by u/s 10A.

2. Notices were issued in this appeal to the Respondent which have been

served but no appearance has been filed by the Respondent nor any reply has

been filed. The Adjudicating Authority has rejected Section 9 application on

the ground that date of default is 08.09.2020 which is within the period

excluded u/s 10 A. Para 13 and 14 of the order is as follows:-

"13. The date of default i.e. 008.09.2020 comes

within the period excluded under section 10A of

the Code, which envisages that no application for

initiation of CIRP shall be filed for any default Company Appeal (AT)(Insolvency) No. 1153 of 2022 1 arising on or after 25.03.2020 which was

extended further till March, 2021.

14. Therefore, the present petition is hit be

section 10A of the Code and cannot be admitted."

3. Learned Counsel for the Appellant submits that Part IV of the

application where particulars of operational debt has been mentioned, clearly

indicated that there was default in payment of several invoices beginning from

16.04.2019 till 26.09.2019 and the amount was payable within 30 days from

the date of invoice. He submits that Adjudicating Authority has not

considered the Part IV in its true spirit and has only taken one line where with

the receipt of payment on 08.09.2020 was mentioned and which was also

treated to be date of default.

4. We have considered submission of the Learned Counsel for the

Appellant and perused the records.

5. Part-IV of the application which is at page 356 of the paper book in

column c, it is mentioned that the amount became due after 30 days from the

invoice date and in the same column, date of invoices have been mentioned

beginning from 16.04.2019 to 26.09.2019. The due date has also been

mentioned in the part c of column 4 and due date of the last two invoice was

mentioned as 26.09.2019. It is clear from last but two invoices that amount

Company Appeal (AT)(Insolvency) No. 1153 of 2022 2 became due after one month. In part 2 of clause IV following statements have

been made:-

"The total amount in default is Rs.

31,358,771.72(Rupees Three Crores Thirteen

Lakhs Fifty Eight Thousand Seven Hundred

Seventy One and Paise Seventy Two Only)

excluding interest. The dates of default are

mentioned herein above in para 1 (c) in the Table

above.

The date of last receipt of payment is 08.09.2020 and

hence, the date of default is taken as 08.09.2020.

Further the date of default of each unpaid invoice is

stated in the chart hereinabove which corresponds to

30 days from the date of invoice."

6. When we look into the claim of the Applicant as is decipherable from

Part IV, it is clearly mentioned that date of default of each unpaid invoice is

stated in the chart which correspond 30 days from the date of invoice. Last

invoice having been issued on 26.09.2019, all amount became due much

before the date 25.03.2020. Hence, when we looked into the Part-IV in its

entirety, it is clear that the application was not barred by u/s 10A.

7. The Adjudicating Authority committed error in not looking into the Part

IV and the details given therein. We, thus are of the view that impugned

order is unsustainable. The appeal is allowed. The order dated 01.08.2022 Company Appeal (AT)(Insolvency) No. 1153 of 2022 3 is set aside. The application CP (IB)97/KB/2021 is revived before the

Adjudicating Authority to be heard and disposed of in accordance with law.

The Adjudicating Authority before proceeding further shall issue a fresh notice

to the Respondent and proceed thereafter in accordance with law.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical) ss/nn

Company Appeal (AT)(Insolvency) No. 1153 of 2022 4