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TMI Blog2022 (7) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... D THAT:- It is clear from the facts that the total amount for maintainability of claim will include both principal debt amount as well as interest on delayed payment which was clearly stipulated in the invoice itself. It is noted that the total principal debt amount of Rs. 97,87,220/- along with interest the total debt makes total outstanding as Rs. 1,60,87,838/-. Thus, the total debt outstanding of OC is above Rs. 1 crore as per requirement of Section 4 IBC read with notification No. S.O 1205 (E) dated 24.3.2020, and meets the criteria of Rs. 1 crore as per Section 4 of IBC and Application is therefore maintainable in present case. Appeal dismissed. - Company Appeal ( AT ) ( Ins ) No. 690 of 2022 - - - Dated:- 15-7-2022 - [ Justice Ashok Bhushan ] ( Chairperson ) , [ Justice M. Satyanarayana Murthy ] Member ( Judicial ) And [ Naresh Salecha ] Member ( Technical ) For the Appellant : Mr. Abhijeet Sinha, Mr. Sunil Vyas, Mr. Nausher Kohli, Mr. Palzer Moktan, Ms. Dipti Das, Mr. Deep Morabia Mr. Aditya Shukla, Advocates For the Respondent : Mr. Saurabh Pandya, Mr. Viraj Parikh, Mr. Mahur Mahajan, Advocate for R-1. Ms. Rubina Khan Mr. Rohit Gupta, Advocate for R-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity in law and deserved to be dismissed. 7. He also cited case laws of NCLT, namely, CBRE South Asia Pvt. Ltd. vs. United Concepts and Solutions Pvt. Ltd. and NCLAT s Judgement of Jumbo Paper Products vs. Hansraj Agrofresh Pvt. Ltd. According to Learned Counsel, Hon ble NCLAT in judgment in case of Steel India vs. Theme Developers Pvt. Ltd. has not accepted claims of OC . Learned Counsel also cited case laws of Hon ble Supreme Court of India, namely, Reliance Cellulose Products Ltd. vs. Oil and Natural Gas Corporation Ltd. (2018) 9 SCC 266 Oriental Structural Engineers Pvt. Ltd. vs. State of Kerala (2021) 6 SCC 150. 8. Appellant also raised issue regarding limitation stating that cause of action arose as early in 2017 but the petition was filed on 16 December, 2020 hence time barred by Limitation Act, 1963. Findings 9. We have pursued the record available and also heard Learned Counsels based on which we observe the following:- Issue of limitation: (i) As regard time barred claims as per Limitation Act, it has been held by the Adjudicating Authority that last date of invoice was 01.02.2020 and date of filing of Application before NCLT, Mumbai was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rational Debt' under the 'I B Code'. It is settled that the charging of interest, ought to be an actionable claim, enforceable under law, provided it was properly agreed upon between the parties. In this case, Learned Counsel for the Appellant submits that the email dated 05th September 2015, relates to the quotation only 13. The Appellant contends that as per agreed terms @2% Interest was payable if the payment is delayed for more than 60 days. In this case, undisputedly, payment was delayed. Therefore the 'Corporate Debtor' is liable to pay interest amount as per agreed terms and conditions. 14. The Operational Creditor has placed reliance on the email dated 05th September 2015, which shows that 'Operational Creditor' quoted the rate to the 'Corporate Debtor' wherein, it was mentioned that if payment was delayed for more than 60 days, then interest@ 2% per month will be charged. The Operational Creditor / Appellant has not filed any document to show that the Corporate Debtor ever agreed to pay the interest on delayed payment. Based on an email dated 05th September, 2015, it is apparent that the Operational Creditor quoted the rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of CBRE South Asia Private Limited v. United Concept and Solutions Private Limited cited by Counsel for Appellant is from NCLT, Delhi, hence, no comment given. Incidentally, we have noted that divergent views have been taken by various NCLT with respect to treatment of interest on delayed payment to treat such component of interest as operational debt. (iv) We have also noted that Adjudicating Authority has also referred one Judgment of this Tribunal i.e Pavan Enterprises v. Gammon India while allowing interest on delayed payment to be part of total debt for calculation of minimum threshold limit for Section 4 of IBC in the Impugned Order itself (at Page 22 of the Memo of Appeal , Volume-I). (f) .. judgement dated 27th July 2018 in Company Appeal No.148 of 2018 in Pavan Enterprises v. Gammon India, wherein the NCLAT has held that If in terms of any agreement interest is payable to the Operational of Financial Creditor then the debt will include interest . In this context, as discussed above, all 9 invoices clearly stipulated provision of Interest on delayed payment. It is also observed that payments of three invoices has been made in full and for o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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