9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (10) TMI 61 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT - The Operational Creditor has repeatedly spurned the offer of the Corporate Debtor to make payment of the principal sums due. However, in the interest of justice and because the Corporate Debtor has, during the course of hearings, repeatedly expressed its intention to settle the principal sum due, we hereby direct the Corporate Debtor to make payment of the principal sum due within a period of fifteen days from the date of pronouncement of this order. We leave it to the wisdom of the Operational Creditor to accept such principal sum due from the Corporate Debtor The object of the Code is not advanced by surprising the Corporate Debtor with a claim for interest firstly by claiming that it was as per industry practice and thereafter making a pitch that it was as per MSME Act, when the Operational Creditor was confronted with a question posed by this Bench as to how the claim for interest was sustainable when neither the purchase order nor the invoices carried a provision therefor. In the present case, the claim for interest has been brought against the Corporate Debtor even though it was never put on notice that the Operational Creditor was registered under MSME Act. The present petition fails and therefore, the same is rejected - petition dismissed.
Issues Involved:
1. Jurisdiction and eligibility of the petition. 2. Validity of the claim amount and interest. 3. Compliance with statutory requirements. 4. Status of the Operational Creditor under MSME Act. 5. Offer of settlement by the Corporate Debtor. 6. Suppression of material facts. Issue-wise Detailed Analysis: 1. Jurisdiction and Eligibility of the Petition: The petition was filed under Section 9 of the Insolvency & Bankruptcy Code, 2016 by the Operational Creditor, Vitson Steel Corp Private Limited, against Capacit'e Infraprojects Limited, a listed public company. The Tribunal confirmed its jurisdiction based on the Corporate Debtor's registered office being in Mumbai. 2. Validity of the Claim Amount and Interest: The Operational Creditor claimed a principal amount of ?13,84,122 and interest of ?60,81,842, calculated at 24% per annum from 20.10.2017 to 06.03.2019. However, the invoices did not provide for interest on delayed payments, and there was a lack of clarity on the quantification of the claim. The Tribunal noted discrepancies in the date of default and the interest component, as well as the absence of a contractual rate of interest. 3. Compliance with Statutory Requirements: The Corporate Debtor argued that the petition was defective due to the absence of a bank certificate as mandated by Section 9(3)(c) of the IBC. Additionally, the Corporate Debtor had made a payment of ?15 lakh post the Demand Notice and contested the interest rate as unilateral and not contracted for. 4. Status of the Operational Creditor under MSME Act: The Operational Creditor claimed interest based on "industry practice" and later under the MSME Act, 2006. The Tribunal highlighted that the MSME status was not disclosed to the Corporate Debtor until questioned by the Bench. The Tribunal referred to Sections 16 and 17 of the MSME Act, which cover the interest component and mode of recovery, respectively. 5. Offer of Settlement by the Corporate Debtor: The Corporate Debtor expressed willingness to pay the principal amount due, but the Operational Creditor did not accept this offer. The Tribunal directed the Corporate Debtor to pay the principal sum within fifteen days and left it to the Operational Creditor to accept the payment. 6. Suppression of Material Facts: The Tribunal found that the Corporate Debtor was kept in the dark about the MSME status of the Operational Creditor and that there was suppression of material facts when the Demand Notice was issued. The Tribunal cited previous judgments, emphasizing that operational creditors cannot misuse the Insolvency Code for extraneous considerations or as a substitute for debt enforcement procedures. Conclusion: The Tribunal rejected the petition, stating that it was primarily based on the interest component, which was not contractually agreed upon. The Tribunal also noted the lack of clarity in the claim and the suppression of material facts. The Tribunal clarified that its observations should not prejudice the petitioner's rights before any other forum.
|
