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TMI Blog2017 (6) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... tice dated 25.05.2015 (Annexure P-9) the outstanding amount of principal for the goods delivered was Rs. 34,85,548.86, apart from the interest @ 24% p.a. The Respondent, vide its reply dated 14.07.2015 (Annexure P-11) had undertaken to pay the balance amount of Rs. 34,85,549 in 12 instalments as detailed in the reply. Therefore, from the aforesaid notice to the respondent, it was an admitted fact that the respondent was to pay an amount of Rs. 34,85,548.86 as claimed by petitioner in the notice (Annexure P-9). 2. The instant petition was received by transfer to the Tribunal terms of Rule 5 of the Companies (Transfer of Pending Proceedings) Rules, 2016 (for brevity the 'Rules') as notified on 07.12.2016. These Rules came into force with effect from 15.12.2016. Sub-rule (1) of rule 5 of the Rules reads as under - "(1) All petitions relating to winding up under clause (e) of section 433 of the Act on the ground of inability to pay its debts pending before a High Court, and where the petition has not been served on the respondent as required under rule 26 of the Companies (Court) Rules, 1959 shall be transferred to the Bench of the Tribunal established under sub-section (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult amount in the tabulated form is attached as Annexure A-3. 5. The matter was listed for the first time on filing of the aforesaid application in form No.5 of AAA Rules on 03.04.2017. Having heard the learned counsel for petitioner, the applicant/petitioner was required to remove the following defects: - "(i) To file resolution of the applicant company/operational creditor that Mr. Ravi Kant Alhat son of Keshav Alhat has been authorised by the company to accept the service of the process on its behalf. (ii) To file affidavit of authorised representative to the effect that there is no repayment of the unpaid operational debt and that no notice of any dispute has been received by the applicant company/operational creditor. The affidavit would further state that no notice of the dispute has been given by the Corporate Debtor relating to a dispute of the unpaid operational debt." 6. The applicant petitioner removed the aforesaid defects by filing an affidavit dated 05.04.2017 and the matter was listed soon after the vacation period of the Tribunal from 08.4.2017 to 16.04.2017. 7. The learned counsel for petitioner recorded his statement on 17.04.2017 that the petitioner-operatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court Cases 527 in support of his contention. The question before the Hon'ble Supreme Court was whether interest payable on the sum due would be a debt so as to attract the provisions of sections 433 and 434 of the Companies Act, 1956, The Hon'ble Supreme Court held as under: - "34. Section 433 of the Companies Act does not state that the debt must be precisely a definite sum. It has not been disputed before us that failure to pay the agreed interest or the statutory interest would come within the purview of the word "debt". It thing to say that the amount of debt is not definite or ascertainable because of the bona fide dispute raised thereabout or there exists a dispute as regards quantity or quality of supply or such other defences which are available to the purchaser; but it is another thing to say that although the dues as regards the principal amount resulting from the quantity or quality of supply of the goods stands admitted but a question is raised as to whether any agreement had been entered into for payment of interest or whether the rate of interest would be applicable or not. In the latter case, in our opinion, the application for winding up cannot be dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r obligation in respect of a claim which is due from any person and includes a financial debt and operational debt'. We are presently concerned with the definition of term 'operational debt" as defined in section 5(21) of the 'Code'. Section 5(20) defines "operational creditor" as meaning 'a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred'. Section 5(21) of the 'Code' says that "operational debt" means 'a claim in respect of the provisions of goods and services including employment or a debt in respect of the repayment of the dues arising under any law for the time being in force and payable to the Central Government or State Government or any local authority. 16. There is a marked difference between the definition of the term financial debt' and the 'operational 'debt'. Under section 5(8) the term 'financial debt' means a debt along with interest, if any, which is disbursed against the consideration for the time value of money and that is an inclusive definition. In the definition of the term 'operational debt' under section 5(21) the w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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