9911796707
TMI Blog2022 (1) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd., seeking the following reliefs: - i. To set aside the order dated 17.03.2021 passed by the Liquidator rejecting the interest amount claimed by the Applicant/Operational Creditor; ii. To direct the Liquidator to admit the interest amount of Rs. 27,26,627/- claimed by the Appellant/Operational Creditor in the liquidation proceedings; The brief facts leading to this MA are as under: 2. The Applicant is the Operational Creditor in IBA/35/KOB/2019. This Tribunal vide order dated 22.04.2020 in IBA/35/KOB/2019 appointed Mr. Sathiq Buhari as the Interim Resolution Professional (IRP) directing the Applicant to deposit a Sum of Rs. 2,00,000/- (Rupees Two Lakhs only) with the IRP to meet out the initial expenses to perform the functions assig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irm was taken only on 18.09.2018 for doing the business "other financial activities" and the invoices of the Packpet Private Limited is not related to any financial service of the category to which Operational Creditor took MSME registration. It was also stated by the Liquidator that the invoices raised were prior to the date of registration as MSME. The 2nd Respondent rejected the interest portion of the claim for the reason that the Applicant did not produce any documentary evidence to prove that the Corporate Debtor company had agreed to pay the interest before they started purchasing materials from the Operational Creditor. 4. It is further stated that despite taking into account the status of the MSME registration or the Applicant/Ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors of the Corporate Debtor are put to sale, the Financial Creditor could have recovered the sum due to it from the Corporate Debtor and this would have enabled the Operational Creditor to get his due amount from the Corporate Debtor by the sale of the assets of the Corporate Debtor. The Liquidator was interested to sell only the assets of the Corporate Debtor without taking any efforts to persuade the Financial Creditor to realize their debt from the secured properties of the Guarantors of the Corporate Debtor. 7. It is also stated that after believing the version of the suspended Board of Directors of the Corporate Debtor company that all the records of the company were destroyed due to flood in the State of Kerala occurred in the year 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant/Operational Creditor under Section 42 of Insolvency and Bankruptcy Code, 2016. Submissions by the Respondent No. 2 9. The Respondent No. 2, learned Liquidator filed a reply to the MA. Even though copy of the MA has been served on Respondent No. 1 and Respondent No. 3 they neither appeared nor filed a reply to this Application. The 2nd Respondent/Liquidator stated that as per direction in the Supreme Court Order in MA No. 665 of 2021 in SMW(C) No. 3 of 2020 the period from 15.03.2020 till 02.10.2021 is excluded from computing the period of limitation. After exclusion of this period, the Court or Tribunals can condone the delay within outer limits of period of limitation prescribed under the applicable law. As per Section 42 of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that 18% interest was charged under MSME Act. Subsequently, after the verification of the MSME Registration Certificate and letter dated 08.02.2021 the Liquidator raised queries from the Applicant to which Applicant replied to the Liquidator requesting him to ignore the MSME Certificate. It is further stated that if the Applicant claimed interest based on MSME status by mistake, the Applicant would have to submit his correction/modification as per Section 38(5) of the Insolvency and Bankruptcy Code, 2016. The Applicant had submitted his claim on 10.02.2021 i.e., last date by which claim should have been submitted. As per Section 38(5) of the IBC, 2016, a Creditor may withdraw or vary his claim under this Section within fourteen days of it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Corporate Debtor or any other person to produce any other document or evidence which he thinks necessary for the purpose of verifying the whole or any part of the claim. 14. It is further stated that the Applicant claimed interest based on the MSME status of his entity. When the Liquidator proved that the Applicant is not eligible to claim interest based on MSME status, the Applicant sought interest based on invoices. Further out of six invoices pending for payment only two of them i.e., invoice No. 299 dated 30.09.2016 and invoice No. 303 dated 03.10.2016 stated that interest will be charged at the rate of 24% per annum after 7 days of date of delivery. Based on these two invoices, the Applicant can claim interest amounting to Rs. 10,7 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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