TMI Blog2017 (6) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... dvised or take other appropriate steps in accordance with the Law. Certified copy of the order be sent to both the parties by speed post. - CP NO. 8/2016 - - - Dated:- 18-4-2017 - Mr. R. P. Nagrath, J. For The Petitioner : Mr. c. S. Chauhan, Advocate for Shri A. P. Sandhu, Advocate For The Respondent : Mr. Atul V. Sood, Advocate ORDER 1. Company petition was fifed in the Hon'ble High Court of Punjab and Haryana for winding up of the Respondent Company for its inability to pay the 'debt' in terms of section 433(e) of the Companies Act, 1956 (to be referred hereinafter as the Act), after having served the Respondent Company with a notice of demand in terms of section 434 of the Act. Annexure P-7 is the notice dated 17.12.2014, calling upon the Corporate Debtor-Respondent to pay the outstanding amount of ₹ 49,45,331.86 being the principal sum, and ₹ 10,52,106.78 towards interest 24% p.a. upto 30.11.2014. It is also admitted by the petitioner that certain payments were made thereafter and the respondent was called upon to pay the remaining outstanding amount. As per the notice dated 25.05.2015 (Annexure P-9) the outstanding amount of princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating Authority) Rules, 2016 (for brevity to be referred hereinafter as 'AAA Rules') an 'operational creditor' is to make an application for initiating corporate insolvency resolution process against the 'corporate debtor' in form 5, accompanied with documents and records required therein and as specified in the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. Sub-rule (2) of Rule 6 further says that the applicant under sub-rule (1) shall despatch forthwith, a copy of the application filed with the Adjudicating Authority by registered post or speed post to the registered office of the 'corporate debtor'. 4. The petitioner/applicant has filed affidavit of Mr. Ravi Kant Alhat, its authorised signatory in form No.5, giving all the particulars required in the said form. It is stated that the outstanding principal amount in default as on 16.03.2017 is ₹ 20,85,273.03 with interest outstanding at ₹ 21,36,518.70. The statement of accounts is attached as Annexure A-2 is in CD form and working for computation of amount and the difference of default amount in the tabulated fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng accepted without prejudice to the rights of the petitioner to press for claim of interest over the outstanding amount. Copy of the cheque be made part of the record. 9. In view of the above the only limited question for determining would be whether the claim of interest falls within the term 'debt' which the respondent is liable to pay, failing which the petitioner is entitled to an order of admission in terms of section 9 of the Code and for recommending the appointment of the Insolvency Resolution Professional. It may be pointed out that the petitioner has not named the IRP to be appointed in case of admission, but has made a request for referring the matter to the Insolvency and Bankruptcy Board of India, for such an appointment in terms of section 16(3) of the Code 10. I have heard learned counsels of parties and given my thoughtful consideration to the controversy involved in the case. It is not disputed by the learned counsel for petitioner that the respondent has issued cheques in respect of entire principal sum due. 11. The learned counsel mainly relied upon the judgment of Hon'ble Supreme Court in Vijay Industries Vs. NATL Technologies Limited (2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to take into consideration that the appellant had in fact issued three notices being dated 6-1-2003, 8-9-2003 and legal notice dated 23-12-2003 specifically mentioning that the payments had been adjusted towards interest first and balance, if any, shall be adjusted towards the principal. Thus, a prima facie case was made out. 14. The Hon'ble Supreme Court set aside the judgment of High Court. Further, instead of remitting the case back to the High Court, disposed of the matter in exercise of its jurisdiction under Article 142 of the Constitution of India, directing the respondent company to pay simple interest on the admitted sum @ 12% p.a. on the balance amount instead of 24% p.a. within 8 weeks from the date the amount became due till it was paid, failing which the consequences provided under the Law were to ensue. 15. I am, however, of the view that the issue here is to be determined, in view of the provisions of the 'Code' which has come into force w.e.f. 01.12.2016. Learned counsel for parties have not disputed that the term debt or operational creditor were not defined in the 1956 Act. This term is now defined in section 3(11) of the 'Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 23.03.2015 (Annexure P-8), attached with the Company Petition filed in the High Court. In this reply, the respondent has explained the reasons for the delayed payment. It was stated that the steps were being taken for restoration of World Health Organization (WHO) pre-qualification of the respondent Company's pentavalent vaccine ( Easyfive-TT ) as in the absence of the same, the supplies of pentavalent vaccine ( Easyfive-TT ) to UNICEF and other agencies could not be made, thereby adversely affecting the respondent company. It was also stated that in view of the above, the petitioner/applicant company had assured full cooperation to the respondent and for that reason, no provision for payment of interest' in case of delay in payment was agreed in any of the purchase order in question. The petitioner has not placed on record the purchase orders issued by the respondent with the applicant company, in order to controvert the above stand of the respondent. 19. The learned counsel for petitioner, however, vehemently contented that the interest can be determined by the Tribunal at the reasonable rate, as the petitioner is entitled to interest in accordance with section 61 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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