Vijaypal Kishorilal Sharma vs Mr. Amit Mittal

Comp. App. (AT) (Ins) No. 489 of 2023 & I.A. No. 1601, 1602 of 2023, 2934 of 2024 IN THE MATTER OF: Vijaypal Kishorilal Sharma ...Appellant

Versus

Amit Mittal & Anr. ...Respondents Present: For Appellants : Mr. Varun Sharma, Mr. Akhil B. Kukreja, Adv. For Respondent : Mr. Prakhar Mithal, Adv. for R1 Mr. Meghna Rao, Yahya Batatawala, Muskan Jain, Adv. for IRP

ORDER

Per: Justice Rakesh Kumar Jain: (Oral)

09.07.2024: This appeal is directed against the order dated

24.03.2023 passed in CP (IB) No. 1193/MB-IV/2020 by the

Adjudicating Authority (National Company Law Tribunal, Mumbai

Bench - IV, Mumbai) on an application filed under Section 9 of the

Insolvency and Bankruptcy Code, 2016 (In short 'Code') by

Respondent No. 1 for the resolution of an amount of Rs.

1,03,37,635/- which included interest @ 24 % p.a. on the

principal amount of Rs. 84,19,041/- from the date of default that

is 21.09.2019 of each invoice has been admitted, moratorium was

imposed and Kanhaiya Maheshwari was appointed as the Interim

Resolution Professional (IRP).

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2. At the time of preliminary hearing on 20.04.2023, the

following order was passed:-

"20.04.2023: Learned Counsel for the Appellant submits that after filing of the Application under Section 9 of IBC, 2016, the Appellant has paid the entire principal amount of Rs. 84,79,041/- and only amount which was due is claim of interest. It is submitted that interest was not part of the purchase order and no interest could have been asked for. Learned Counsel for the Appellant submits that Operational Creditor did not bring to the notice of the Court about the payments made by the Corporate Debtor during pendency of the Application.

2. Submission needs scrutiny. Issue notice to the Respondents through Speed Post as well as Email. Requisites along with process fee, if not filed, be filed within two days.

3. Let Reply-Affidavits be filed within three weeks. Rejoinder, if any, may be filed within two weeks, thereafter. List this Appeal on 22nd May, 2023. In the meantime, in pursuance of the Order impugned dated 24.03.2023, no further step shall be taken."

3. Counsel for the Appellant has argued that before filing the

application under Section 9 of the Code, Respondent No. 1 had

filed a suit before the Hon'ble High Court of Bombay. The said suit

was filed for recovery of Rs. 1,01,56,751/- alongwith interest @

24% p. a.

4. The suit was decreed on 14.12.2022 directing the defendant

(Appellant herein) to pay to the Plaintiff (Respondent No. 1 herein)

a sum of Rs. 61.08.217/- with further interest of 18% per annum

on the principal amount of Rs. 23,70,417/- from the date of suit

till realization.

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5. Counsel for the Appellant has submitted that in the said suit,

the defendant while appearing as a witness, stated in examination

chief that:-

"12. I say that after filing of the suit, the defendant made part payment of Rs. 34,00,000/- and after giving credit to the said payment, an amount of Rs. 61,18,217/- which includes principal amount of Rs. 23,70,417/- and interest Rs. 37,37,710/- 18% p.a is due and payable by the defendant to the plaintiff. I tender herewith Ledger account of the defendant maintained by the Plaintiff in their books of account as Exhibit-18. The said ledger account is signed by me during the course of business."

6. He has thus submitted that since Respondent No. 1 has

claimed interest @ 18% on the principal amount of Rs. 23,70,417/-

and the Court has granted the interest @ 18 %, the amount

calculated @ 18% interest is short of the threshold of Rs. 1 Cr. as

provided under Section 4 of the Code. In this regard, he has

submitted a calculation sheet of tax invoices @ 18 % interest p.a

which read as under:-

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7. According to the Appellant, the total amount comes to Rs.

9,583,681/- which is short of Rs. 1 Cr. and thus the application

filed by Respondent No. 1 under Section 9 is not maintainable and

hence, the impugned order deserves to be set aside.

8. In reply, Counsel for Respondent No. 1 has vehemently

argued that the amount of interest claimed by Respondent No. 1

was @ 24% from the date of default whereas the suit has been

decreed and the interest has been granted @ 18% p.a from the date

of suit till realization.

9. It is further submitted that in case the interest @ 24% is

calculated from the date of default till the date of filing suit then it

will cross the threshold.

10. We have heard Counsel for the parties and perused the record

with their able assistance.

11. The argument raised by Respondent No. 1 appears to be

attractive but in view of the statement made by Respondent No. 1

while appearing in the suit which we have already captured in the

early part of this order, Respondent No. 1 himself stated that he

has received part payment of Rs. 34,00,000/- from the Appellant

herein and after giving credit to the said payment, an amount of

Rs. 61,18,217/- was remaining which includes principal amount

of Rs. 23,70,417/- and interest of Rs. 37,37,710/- @18% p.a.

Since, Respondent No. 1 itself has claimed the interest @ 18% 5

which too has been granted by the Hon'ble High Court in its

judgment decree dated 14.12.2022, therefore, it does not lie in his

mouth to claim interest @ 24% on the balance amount.

12. In view thereof, we accept the contention of the Appellant and

the calculation submitted by him by way of a chart which we have

already referred to above that the remaining amount to be claimed

by Respondent No. 1 is less than Rs. 1 Cr. which does not meet

the criteria of the threshold, therefore, the application filed under

Section 9 of the Code is not maintainable. The appeal is thus

allowed and the impugned order is set aside though without any

order as to costs.

13. At this stage, Counsel for IRP has submitted that dues of the

IRP have not been paid. In this regard, it will be open for the IRP

to file an appropriate application, in accordance with law, before

the Adjudicating Authority.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

[Mr. Indevar Pandey] Member (Technical)

Sheetal/Ravi