9911796707
TMI Blog2025 (5) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... h INR 3,75,00,000/- being the principal amount, INR 54,98,630/- being the interest for the delayed period from the date the said debt fell due till 09.01.2025. 2. The Corporate Debtor herein, i.e., M/s. Enerture Technologies Private Limited, incorporated under the provisions of the Companies Act, 1956 has its registered office situated at 128, 2nd Floor, Kaveri Apartment, D 6, Vasant Kunj, South Delhi-110070. Since the registered office of the Respondent Corporate Debtor is in New Delhi, this Adjudicating Authority has jurisdiction in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of Corporate Debtor. CONTENTIONS 3. The particulars of transactions leading to the filing of the present application as averred by the Applicant/Operational Creditor are as under- a. The Operational Creditor/Applicant herein is a leading name in the engineering sector and provides engineering construction services in the execution of projects of varied nature. It is pertinent to mention herein that the Applicant is registered under MSME Act, 2006 under 'Small Enterprise'. b. The Corporate Debtor are said to be MNRE channel partner and are engaged in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecting the reason as 'funds insufficient'. Thereafter, there were multiple communications and the Respondent herein assured the Applicant for depositing the cheque again, and when the Applicant herein, based on these assurances, deposited the two cheques again on 19.11.2024; the said cheques were dishonoured again vide Return Memo dated 20.11.2024 reflecting the reason as 'funds insufficient'. i. As a result, the Applicant was compelled to issue a Legal Notice dated 23.11.2024 under section 138 read with Section 141 of Negotiable Instruments Act for the dishonor of the aforementioned cheques along with interest charged @24% per annum. j. Simultaneously, aggrieved due to the non-payment of outstanding amount, the Applicant herein issued a Demand Notice dated 23.11.2024 under Section 8 of the Code for the unpaid debt amounting to INR 4,29,98,630/- (Rupees Four Crores Twentynine Lakh only) which is inclusive the interest for default period of 335 days amounting to INR 54,98,630/- (Rupees Fifty-four Lakh Ninety-eight Thousand Six Hundred Thirty only). k. In light of the aforementioned facts and circumstances, the Applicant herein has filed the instant Application against the Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order- (i) admit the application and communicate such decision to the operational creditor and the corporate debtor if- (a) the application made under sub-section (2) is complete; (b) there is no payment of the unpaid operational debt; (c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor; (d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and (e) there is no disciplinary proceeding pending4 against any resolution professional proposed under sub-section (4), if any. (ii) reject the application and communicate such decision to the operational creditor and the corporate debtor, if- (a) the application made under sub-section (2) is incomplete; (b) there has been payment of the unpaid operational debt; (c) the creditor has not delivered the invoice or notice for payment to the corporate debtor; (d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has been upheld by the Hon'ble National Company Law Appellate Tribunal, New Delhi in the matter of Permali Wallace Pvt. Ltd. vs Narbada Forest Industries Pvt. Ltd.; C.A. (AT) (Ins.) No.:36 of 2023. The Hon'ble Appellate Authority has further formed a view that such an attempt can be viewed as a recovery tool as well. The germane excerpt from the judgment is mentioned hereinbelow- "5. ...we are of the view that Adjudicating Authority did not commit any error in rejecting Section 9 Application. It has been laid down by the Hon'ble Supreme Court in "Swiss Ribbon Pvt. Ltd. Vs. Union of India" ((2019) 4 SCC 17), IBC is not a recovery proceeding and the Application which has been filed by the appellant in the present case is only the application for recovery of balance amount of the interest and application was not filed for resolution of any insolvency of the Corporate Debtor..." 10. Resultantly, this Adjudicating Authority is of the considered view that the instant application ought to be rejected on the basis of the aforementioned ground solely, as the said default cannot be expressly categorised as 'operational debt'. 11. Another observation made by this Adjudicating Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
