Saru International Private Limited vs Arumani Traders

M/s. Saru International Pvt. Ltd. ....Appellant Vs. M/s. Arumani Traders ...Respondent For Appellants: Mr. Akhil Krishan Maggu, Advocate. For Respondent: Mr. Shailender Kumar, Advocate.

ORDER

(Through Virtual Mode)

09.02.2022: Heard Learned Counsel for the Appellant as well as

Counsel appearing for the Respondent- Operational Creditor.

2. This Appeal has been filed against an order dated 29.09.2021 passed

by the Adjudicating Authority (National Company Law Tribunal), New Delhi,

Court-III, by which the Adjudicating Authority has issued an interim

direction restraining the Corporate Debtor, its directors, employees, agents,

assignees etc. from disposing of their immoveable (Plant & machinery and

other fixed assets) and immoveable property at A-4, Leather Complex, RIICO

Area, Manpur- Machedi, Jaipur (Rajasthan) till the next date of hearing.

3. The Operational Creditor has filed an Application under Section 9

claiming defaulted amount of Rs. 39 Lakhs from the Corporate Debtor. The

Application under Section 9 was filed on 10.08.2020. When the Application

came for consideration before the Adjudicating Authority, following order was

passed on 16.02.2021:

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"Counsel for the Petitioner is present. It has been noted that the petition has been filed on 10.08.2020 and the default amount is Rs. 39 Lakhs approximately whereas the threshold for filing a petition under Section 9 was raised to Rs. 1 Crore w.e.f. 24.03.2020. The Counsel for the Petitioner prayed for time to seek fresh instructions from his client. At request, time is enlarged.

List the matter on 01.03.2021."

4. Subsequently, Application was proceeded and now impugned order

has been passed on 29.09.2021 as noted above.

5. Learned Counsel for the Appellant submits that the Application filed

by the Operational Creditor itself was not maintainable since the amount

claimed was less than the threshold which has been provided by Notification

dated 24.03.2020 of Rs. 1 Crore. He submits that the Application being not

maintainable, the Adjudicating Authority ought to have rejected the same

and not passed the impugned order on 29.09.2021.

6. Learned Counsel for the Operational Creditor submits that since notice

under Section 8 of the Code was issued on 19.09.2019, hence, for this cause

of action which was there when notice was issued, the Application can very

well be entertained under Section 9 even after 24.03.2020.

7. We have considered the submissions of the Counsel for the parties and

perused the record.

8. By Notification dated 24.03.2020, the threshold for entertaining an

Application under Section 9 has been raised from Rs. 1 Lakh to Rs. 1 Crore.

The Notification and the provisions for increasing threshold, shall operate Comp. App. (AT) (Ins.) No. 129 of 2022 3

prospectively i.e. after 24.03.2020. In the present case, the Application was

filed by the Operational Creditor on 10.08.2020 i.e. subsequent to above

Notification raising the threshold. The amount claimed in Section 9

Application only Rs. 39 Lakh hence, it was less than the threshold and

Application ought to have been thrown out on this ground. The Adjudicating

Authority on 16.02.2021 has noticed the question and has granted time to

Petitioner to explain.

9. We are of the view that when the Application itself was not

maintainable by virtue of Notification dated 24.03.2020, there was no

necessity to proceed any further or pass any interim order as passed on

29.09.2021. We are satisfied that Application No. IB-100/(ND)/2021 was not

maintainable and ought to have been dismissed. We thus, are of the view

that Application No. IB-100/(ND)/2021 filed on 10.08.2020 was not

maintainable and deserves to be dismissed. The Adjudicating Authority itself

although had called upon the Appellant to explain the question for filing the

petition but without adverting to the said question issued the interim order

on 29.09.2021. In result, we allow this Appeal, set aside the order dated

29.09.2021 and also reject the Application No. IB-100/(ND)/2021 which

does not fulfil the statutory requirements under Section 4 of the Code. The

Appeal is allowed setting aside the order dated 29.09.2021 passed by the

Adjudicating Authority as well as rejecting Application No. IB-

100/(ND)/2021.

10. Registry shall forward the copy of this order to the National Company

Law Tribunal, Court No.III to place copy of this order in the record and to Comp. App. (AT) (Ins.) No. 129 of 2022 4

make a note that Application No. IB-100/(ND)/2021 stands rejected. No

order as to costs.

[Justice Ashok Bhushan] Chairperson

[Dr. Ashok Kumar Mishra] Member (Technical)

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

Comp. App. (AT) (Ins.) No. 129 of 2022