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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 ₹ 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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