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TMI Blog2019 (5) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... key solutions for customers requiring hearing systems such as boilers/heaters for process application which is used in manufacturing process. 3. That, the respondent/corporate debtor is a private limited company registered under the Companies Act, 1956, incorporated on 07.07.2010 at Delhi and subsequently shifted to Gujarat on 05.09.2012, having identification No. U40104GJ2010PTC071817 and having office at "tbea Green Energy Park", Vill. Miyagam, Karjan, Dist. Vadodara 391 440, Gujarat State. Nominal share capital of the respondent company is 932,99,68,000/- and paid up share capital is Rs. 9,24,34,31,170/-. 4. It is submitted by the applicant that, the Respondent company had approached the applicant for the purpose of setting up of their plant and had entered into series of contracts for supply of materials as well as setting up of the said systems into their power plant from time to time between January 2012 to January 2014. That the respondent has not raised any dispute or demur with respect to quality of the materials supplied or the work performed by the applicant. Since the work was performed inside the respondent company plant there was constant vigil both by the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Insolvency and Bankruptcy Regulations, 2016 calling upon the respondent company to pay aggregate amount of Rs. 25,42,163/- with further running interest @ 24% per annum from the date of receipt of notice and till the actual payment and/or realisation, within ten days of the receipt of notice and filing of Form No. 5. That, the said notice was served upon the respondent on 23.10.2017. However, the respondent company had not bothered to reply the said notice. That only after receiving the notice under this Code, senior officials of the respondent company arranged a meeting in Vadodara and promised to release the principal dues soon, but failed again to discharge the admitted liability. 8. It is further submitted by the applicant that to the knowledge of the applicant, the respondent company owes huge amounts of money not only to the applicant but to various other financial and operational creditors also. That, the respondent company has been making huge losses and is not in a stable position to clear its debts and liabilities. 9. It is further submitted by the applicant that the applicant used to maintain a running account for the goods supplied and the services rendered to the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsation for delayed payment stood merged with that of the principal. 11. The applicant has further submitted that the applicant has claimed interest @ 24% on the delayed payment of the amount raised in the invoices from the respondent. That the applicant suffered many loses due to non-realisation of the payments of the invoices raised against the respondent, compelling the applicant to borrow money from banks and outside agencies to run its business at heavy rate of interest and costs. That, the applicant, therefore, as a measure to soften its financial burden resulting from the non-payment on the part of the respondent justifiably claimed the interest @ 24% on delayed payment. That, the respondent paid only principal amount as per invoice after filing of the present application under IBC and refused to pay the amount representing interest/damages for the delay of over four years in settling the dues. That, the invoices (contract) envisaged interest @ 20% on delayed payments among its terms and conditions and the same was accepted by the respondent without any dispute at the time of delivery of goods and services. That, therefore, the respondent is bound by those terms of the invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 5 of the Insolvency and Bankruptcy Regulations, 2016 calling upon the respondent company to pay aggregate amount of Rs. 25,42,163/- (Rupees twenty-five lacs forty-two thousand one hundred sixty-three only) with further running interest @ 24% per annum from the date of receipt of notice and till the actual payment, within ten days of the receipt of the notice. That, total amount of debt including interest @ 24% per annum amounts to Rs. 57,74,519/-(Rupees fifty-seven lacs seventy-four thousand five hundred nineteen only). That, the said notice was served upon the respondent on 23rd October, 2017 by hand delivery and by Registered Post on 27th October, 2017. That, the respondent chose to release the payments only after filing of the present application, inspite admitting their liability. That the instant application came to be filed on 21.12.2017, nearly about two months later. That, the respondent released the first payment of Rs. 22,57,434/- on 11.01.2018 and the second amount of Rs. 3,00,000/-(Rupees three lacs only) on 12.04.2018. 15. Applicant also filed copies of Invoices as well as delivery challans, copy of account statement and copy of demand notice dated 20.10.2017. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is further submitted by the respondent that, the applicant had issued demand notice on 20.10.2017, thereafter applicant moved before this Tribunal, but before effective hearing of the matter, respondent had already made payment of principal amount of Rs. 22,57,434/- (Rupees twenty-two lacs fifty-seven thousand four hundred thirty-four only) to the applicant on 11.01.2018 and this fact has been suppressed by the applicant in the present application. That, on 30.01.2018, when the matter came up for hearing before this Tribunal, the applicant knew that they have received payment of outstanding principal amount on 11.01.2018, but did not declare before this Tribunal regarding receipt of the outstanding amount. That, the respondent was under the impression that they have made payment of full principal amount as on 11.01.2018, but during audit having transpired that sum of Rs. 3,00,000/-(Rupees three lacs only) which was paid on 26.06.2015 were not actually credited to the applicant's account. That, knowing the said fact, an amount of Rs. 3,00,000/- lacs (Rupees three lacs only) were again paid on 12.04.2018 by the respondent to show his bona fides and credibility and thus the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as released payment amounting to Rs. 1,80,52,711/- (Rupees one crore eighty lacs fifty-two thousand seven hundred eleven only). Further, the computation so filed by the applicant in the petition shows that an amount of Rs. 25,421,63.31 is outstanding towards principal and interest @ 24% has been levied which was never agreed upon. Hence the computation given by the applicant misrepresents the facts. It is admitted by the applicant that the respondent made last payment of Rs. 76,500/- on 27th January, 2014. Perusal of the records goes on to show that the demand notice issued by applicant on 20th October, 2017 was served upon the respondent on 23.10.2017. That, the instant application was filed on 21st December, 2017 and during pendency of the application, respondent made payment of Rs. 22,57,434/- (Rupees twenty-two lacs fifty-seven thousand four hundred thirty-four only) through RTGS on 11.01.2018. That, the said fact has never been revealed during the course of argument by the petitioner. It is pertinent to mention here that, during the course arguments, learned counsel appearing on behalf of the applicant had not brought it to the notice of the Adjudicating Authority about the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of value of assets of such persons to promote entrepreneurship, availability of credit, and balance the interest of all stakeholders. The recent ordinance explicitly aims to promote resolution over liquidation. 2. The objective of the I & B Code is Resolution. The purpose of Resolution is for maximisation of value of assets of the Corporate Debtor and thereby for all creditors. It is not maximisation of value for a stakeholder or a set of stakeholders, such as creditors and to promote entrepreneurship, availability of credit and balance the interests. The first order objective is "resolution". The second order objective is "maximisation of value of assets" of the corporate debtor and the third order objective is promoting entrepreneurship, availability of credit and balancing the interests. This order of objective is sacrosanct." 26. On perusal of the material available on record it is found that only in three tax invoices stipulation of 20% interest has been made, whereas, the applicant has claimed interest @ 24% on all the bills. To decide the issue, it is desirable to refer para 4 & 5 of the order dated 27.07.2018 passed by the Hon'ble NCLAT in Company Appeal (AT) ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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