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2021 (12) TMI 681 - AT - Insolvency and BankruptcyInitiation of CIRP - NCLT admitted the application - Operational creditors - The pivotal plea taken on behalf of the Appellant is that the obligation of the Corporate Debtor was to perform the export of goods and the liability arises when the Contract was terminated on 30.04.2020 and when the Corporate Debtor was directed to return the money. As such the 1st Respondent cannot bring a default early to the date of 30.04.2020. - HELD THAT - As seen from the I B Code 2016 an Adjudicating Authority does not decide a suit/money claim and the CIRP is not determined by the Court . In the initial stage an Adjudicating Authority is required to take appropriate steps for Resolution of the Corporate Debtor under Insolvency . No wonder Resolution Process is not a Litigation by any stretch of imagination. In the instant case the application under Section 9 of the I B Code (IBA/35/KOB/2020) was filed on 16.09.2020. The Section 8 Demand Notice to the Corporate Debtor was sent by WhatsApp and email on 01.08.2020 and further that the said Notice by way of caution was sent through speed post on 04.08.2020 which was received by the Corporate Debtor on 10.08.2020 as averred by the 1st Respondent/Operational Creditor in Part IV of its application at Sl.No.8 - Corporate Debtor before the Adjudicating Authority had taken a stand that there was no Contract or agreement between the parties in regard to the award of Interest at 18% as claimed by the Operational Creditor and that the object of I B Code 2016 is not a recovery of money and the frustration of contract reasons for failure of export inspection of goods on account of Covid lock down require detail rumination in fixing the liabilities of the Corporate Debtor. In short according to the Corporate Debtor there exists a Dispute and the determination of Default require and elaborate examination of facts and letting in of evidence to be adduced by the respective parties. In regard to the facts of the present case on hand are even though the Date of Default was on 03.01.2020 the application under Section 9 of I B Code was filed by the Operational Creditor/Applicant before the Adjudicating Authority on 16.09.2020 wherein the Operational Creditor had claimed a total amount of debt USD 1, 13, 500 payable by the Corporate Debtor to it including interest at 18% per annum amounting to USD 13, 500 as on 31.08.2020 in view of the fact that the contract was terminated on 30.04.2020 there being a dispute in regard to the contract for delivery of goods (in respect of supply of cashew kernels) between the parties the threshold limit under Section 10A of the Code for initiation of CIRP is Rs. 1 Crore (vide Notification to Section 4 of the Code dated 24.03.2020 in the instant case the Default claimed from Corporate Debtor is USD 1, 00, 000 and interest @ 18% per annum amounting to USD 13, 500 and the interest being denied by the Corporate Debtor there being no contract for paying the interest between the parties) and this Tribunal taking note of the fact that under the Contract the amount was due and payable on 25.04.2020 comes to a consequent conclusion that as per provision of Section 10A the application filed by the Operational Creditor /petitioner under Section 9 of the Code is not maintainable. The Adjudicating Authority will now close the proceedings and is required to fix the Fee of the Interim Resolution Professional and that the Corporate Debtor is required to pay the Fees for the period the Interim Resolution Professional had discharged his duties. Appeal allowed.
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