9911796707
TMI Blog2022 (5) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Respondent. This Appeal has been filed against the order dated 25.02.2022 by which the Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, has admitted the Section 9 Application filed by the Operational Creditor. The Suspended Director of the Corporate Debtor aggrieved by the order has come up in this Appeal. A few facts need to be noted before considering the submissions raised before us by learned counsel for the parties:- a) Company Petition No. 1686 of 2018 was filed by the Operational Creditor on 13.12.2018 on the ground that the Corporate Debtor failed to make payment of a sum of Rs.9,48,997/-. There were three other Company Petitions which were filed by the Operational Creditor. After issuance of notices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f amounts due at the costs and peril of the Parties of the Second Part. Any amount paid from the date of this TOS upto the date of default would be adjusted first against the cost already incurred against the current Insolvency proceedings, all legal charges & other cost and additional cost which would be incurred owing to default which might occur in future, before the same is adjusted against overdue interest and thereafter principal. vi) In case of breach of any terms and conditions of the settlement agreement the Parties of the First Part would immediately be able to take action and to claim full amount as claimed in the aforementioned proceedings filed before the Hon'ble NCLT, Kolkata Bench plus other legal cost, charges, interest o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that present was not a case for revival of the Section 9 proceeding. He has referred to orders passed by the Adjudicating Authority where liberty was granted to revive the same if settlement talks fails. His first submission was that settlement talks did not fail, hence, liberty should not be granted to revive the application. Secondly, in pursuance of the Settlement Agreement, entire payment has already been made to the Operational Creditor with regard to which Supplementary Affidavit has been filed indicating the details of the payments. He further submits that with regard to two TDS amounts, Supplementary Affidavit has clearly mentioned that TDS amount of Rs.66,884/- and Rs.1,10,820/- could not be paid which remained outstanding. He s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Hundred Twenty only) could not be paid to the income tax authorities and the same does not come within the pecuniary jurisdiction of this Adjudicating Authority." 6. The entire consideration of the submissions of the parties and facts and circumstances are contained in Paragraphs 11 to 14. In Para 14 observations have been made which are to the following effect:- "14. We do not agree with the contention of the Corporate Debtor that the TDS amount of Rs.66,884/- (Rupees Sixty Six Thousand Eight Hundred Eighty Four only) and Rs.1,10,820/- (Rupees One Lakh Ten Thousand Eight Hundred Twenty only) does not come within the pecuniary jurisdiction of this Adjudicating Authority. The Corporate Debtor is liable to pay the said amount." 7. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unts has already been made, which is disputed by learned counsel for the Respondent. Regarding non-payment of TDS, we are of the view that it is not for us to consider whether TDS amount have been paid or not although it has been clearly submitted at the Bar by the Appellant that they have been paid. We, thus, are of the view that the Adjudicating Authority has committed serious error in admitting the Section 9 Application on the ground of nonpayment of two TDS amounts. For the reasons noted above, the order of the Adjudicating Authority admitting Section 9 Application is unsustainable and deserves to be set aside. 10. Present is also a case where the Operational Creditor has misused the process of I&B Code in filing application for reviva ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
