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2023 (8) TMI 320 - AT - Insolvency and BankruptcyApplication hit by Section 10A of IBC - Barter Transactions - dues claimed are prior to 25/03/2020 and ‘interest’ has been calculated from that date and the date of default written in Section 9 Application is 22/02/2020 and the calculation of interest is from 01/04/2020 - existence of pre-existing dispute or not - HELD THAT:- From the Invoice, it is clear that it is agreed between the Parties that interest would be charged at 24 % p.a., if payment is not received within 30 days from the Invoice date. Likewise, a bare reading of the aforenoted Invoice shows the interest component to be 24 % p.a. with a ‘default clause’ that if the amount is not paid within 30 days from the Invoice date, interest will be attracted. Therefore, the contention of the Learned Senior Counsel that the calculation ought to be based on 11 days to 42 days, is untenable. The total amount for maintainability of Claim will include both ‘Principal Debt amount’ as well as the ‘Interest’ on the delayed payment which is stipulated in the Invoice dues. In the instant case, the Principal amount is said to be Rs. 1,65,60,017/- and the interest portion at 24 % as per the second Clause in Invoice No. 2 is Rs. 56,31,027/-. Therefore, this Tribunal is of the considered view that the amount has crossed the threshold of Rs. 1,00,00,000/- and also that the amounts due and payable are for a period prior to 25/03/2020. The date of default mentioned in the Section 9 Application is 22/02/2020. Therefore, it is clear that for any amounts due and payable prior to 25/03/2020, Section 10A cannot be made applicable. Pre existing dispute between the Parties as there was a Barter Transaction and when the Respondent / Operational Creditor had initiated Arbitration Proceedings under the MSME Council - HELD THAT:- It is seen from the record that the MSME Council has rejected the Application and there is no Claims / Suit pending in any Court of Law before any Tribunal and there is no Arbitration Proceeding pending prior to the initiation of the Section 8 Notice. Additionally, the Appellant had stated in Para 8 of their Counter, that a payment of Rs. 40,000/- was made on 10/08/2021, 09/09/2021, 12/10/2021 & 22/03/2022 which further establishes that some amounts were paid even subsequent to the filing of the Application before the MSME Council - Additionally, the Appellant had stated in Para 8 of their Counter, that a payment of Rs. 40,000/- was made on 10/08/2021, 09/09/2021, 12/10/2021 & 22/03/2022 which further establishes that some amounts were paid even subsequent to the filing of the Application before the MSME Council. The Hon’ble Apex Court in the matter of ‘Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software Pvt. Ltd’ reported in [2017 (9) TMI 1270 - SUPREME COURT] has addressed to the question of ‘pre existing dispute’ and observed So long as dispute truly exists in fact and is not spurious, hypothetical, or illusory, the Adjudicating Authority has to reject the application. This Tribunal is of the considered view that the ratio of the aforenoted Judgment is squarely applicable to the facts of this case as this Tribunal is of the considered view that the ‘Dispute’ raised is a spurious one and is an illusory one. Additionally, it is significant to mention that before the very same ‘MSME Council’, the Appellant / Corporate Debtor in his Reply, in Paras 4 and 5 (Reply to MSME Annexure A4) has clearly admitted that the ‘reason for delay of settlement of outstanding amounts is not wanton and that Company is making all sorts of efforts to settle the outstanding dues as soon as possible’. Appeal dismissed.
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