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TMI Blog2020 (12) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... y Agreement and expressly laid out terms, there is no right to payment of interest at a certain rate, created in the hands of the Petitioner as per terms of its choice, and there cannot be any debt and default in respect of such interest, within the meaning of the Code, even if some interest is otherwise payable. Also, in the absence of any Agreement, there cannot be a default for delayed or non-payment of the amounts raised through invoices. One sided Invoices or E-mails cannot be a substitute for a mutual agreement. In any case there is no clear and undisputed debt, which is a sine qua non for proceeding under Section 9 of the Code as the Respondent has attributed the late payments to delayed delivery of supplies and also the exorbitant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne Lakh Twenty Seven Thousand Four Hundred Forty Three and Paise Fifty Three Only). 2. Mr. Hari Shankara Narayana, holding the position of Company Commercial Operation Head has filed this Petition being authorised by Board Resolution dated 26.07.2019 passed by the Petitioner Company. Copy of the Board Resolution is annexed to the Petition. 3. Brief facts of the case, as mentioned in the Company Petition, which are relevant to the issue in question, by inter alia stating as follows: (1) The Petitioner provided logistics services to the Respondent in respect of a shipment from Bangalore to Srinagar in respect of which several invoices were raised from 25.03.2019 to 12.06.2019. The amounts of the invoices being ₹ 15,50,563 (R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due vide email dated 23.08.2019 issued to the Petitioner's counsel in response to the Demand Notice. Copy of the email is annexed to the Petition. (7) It is submitted by the Petitioner that the said payment proposal was rejected by it vide email dated 29.08.2019 stating that the entire amounts of ₹ 16,78,006.53 due and payable should be paid to the Petitioner in 3 equated instalments being 10.09.2019, 10.10.2019 and on 01.11.2019. Copy of the email is annexed to the Petition. (8) The Respondent has filed its statement of objections on 18.02.2020 contending that there was no acceptance of the proposal that the payments are to be made within a period of 7 days. The Petitioner's contention that there were TERMS agreed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is ₹ 40 Crore. The Petitioner has unreasonably filed this petition which ought to be dismissed. 4. Heard Shri Uddyam Mukherjee, learned Counsel for the Petitioner through Video Conference. We have carefully perused the pleadings of both the parties and extant provisions of the Code and the Rules made thereunder. 5. On perusal of the Petition and the annexures thereto, it appears that there is a delay in making payment to the Petitioner. However, we do not find any document that indicates the existence of any agreement between the parties with regard to the terms of the payment. Similarly, but for the Invoices, there is nothing to show that interest was agreed upon to be charged at 24%, in case of delay in payment, as being char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 147 CLA 112 (SC) clarified that the Petitioners cannot use IBC either prematurely or for extraneous considerations or as substitute for debt enforcement procedures. 7. In the present case the Petitioner has attempted to use the Code only to recover its amounts from an otherwise solvent company with a healthy turnover, having a large number of employees, and having on-going projects in hand. No case has been made out that the Corporate Debtor has become insolvent or has lost its substratum, such that it is unable to pay its debts or run its business. This is clearly against the spirit of the Code. The Respondent had the intention to repay the amount owed and was admittedly ready and willing to pay the same as per the payment schedule vid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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