TMI Blog2018 (2) TMI 1849X X X X Extracts X X X X X X X X Extracts X X X X ..... not established to the hilt the eligibility of claim of Interest. Merely a filing of a calculation sheet, that too a computer generated statement, is in our humble opinion, a self-serving document and not a cogent evidence admissible under the Law. The absence of a written instrument acknowledging the Liability of Interest payment as also acknowledging the Liability of the rate at which Interest was to be charged, definitely affect adversely the Claim of the Petitioner. When the Principal amount of Debt had admittedly been paid and duly accepted by the Petitioner and the claim of Interest remained unsubstantiated in the absence of cogent evidence, the "Operational Debt" in question remained unascertainable - Petition dismissed. - CP No.1294/I&BC/NCLT/MB/MAH/2017 - - - Dated:- 1-2-2018 - Shri M.K. Shrawat, Member (Judicial) And Shri Bhaskara Pantula Mohan (Judicial) For the Petitioner(s): Mr. G.K. Jain, Chartered Accountant. For the Respondent(s): Mr. Shyam Kapadia, Counsel, Ms. Smruti Kanade, Advocate, Mr. Suraj Kaushik, Advocate, Mr. P.N. Dixit, Representative of GIL. ORDER Per M.K. Shrawat, Member (Judicial). 1. A Petition filed by Operational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case was fixed for hearing to decide the controversy of claim of Interest. 4. On the date of hearing from the side of the Petitioner Learned Representative Mr. Jain has drawn our attention on the synopsis of events and described that the Petitioner had supplied hardware and electric goods to Gammon India during the period of 01.04.2012 to 20.11.2015 at the site of Project. A reliance has also been placed on a Balance Confirmation Letter dated 20.11.2015. It has also been informed that under the Insolvency Code a Notice of Demand under section 8 was served on 17.07.2017. Learned Counsel has explained that the amount in question was not received as is also apparent from the Bank Statement of the Creditor as well as affirmed by a Certificate issued by the Bank. Even after several reminders the outstanding Debt was not paid hence the Petitioner has submitted the impugned Petition under section 9 of The Code with the Prayer to initiate Insolvency Proceedings against the Corporate Debtor. He has emphasized that out of the total debt amount, which was inclusive of interest, only a part payment has been received during the progress of hearing hence the Petition deserves admission for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not fulfilled his commitment, hence on principle the Company is not under any obligation even to pay the Principal Debt amount. Importantly drawing our attention on the Statement of Account of Gammon India in the Books of Orissa Sales it is pointed out that there was no charging of Interest, hence the outstanding Debt as per the said statement for amount of ₹ 67,19,798/- was paid bona fidely with an expectation that the Creditor shall not unnecessarily raise the issue of claim of Interest. Reliance was placed on a decision of NCLT, Chandigarh, Order dated 18.04.2017 (CP No.8/2016(RT No.9/Chd/PB/2017)) in the case of M/s. Wanbury Ltd. Vs. M/s. Panacea Biotech Ltd., affirmed by NCLAT Order dated 11.08.2017 (Company Appeals (AT) (Ins) No. 64 of 2017). 6. FINDINGS:- Heard both the ides at length in the light of the records available for our perusal. The Petition for our adjudication is submitted by the 'Operational Creditor' by invoking the provisions of section 9 of the Insolvency Code. As per Form No.5 submitted under Rule 6 of Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016 vide Part-IV the total Debt amount referred as ₹ 1,27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional debt. Undisputedly, a Debt is a Property. It is assignable and ought to be an Actionable claim. A Debt is an obligation to pay certain sum of money by a Debtor to the Creditor. It is legally due and owed by the Debtor. Even if not in existence the accrual must be definite and ascertainable, therefore, accepted legal position is that a Debt may be due in present or may be payable in future. But the fundamental position of Law is that even if the right of claim may fall in future it must exist at present. As a consequence, there must pe an instrument in writing presently in existence so that on the basis of the documented obligation the claim can be enforceable in future. In other words, it can further be explained in simple languagethat an Actionable Claim being an enforceable right under a Law must be duly supported by a cogent evidence in existence. 6.4 Next is the definition of Operational Debt . As defined under Section 5(21) Operational Debt means a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues arising under any law for the time being in force and payable to the Central Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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