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TMI Blog2023 (7) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the Operational Creditor has rightly relied on judgment of this Tribunal in Prashant Agarwal vs. Vikash Parasrampuria Anr [ 2022 (7) TMI 835 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH] , where three Member Bench of this Tribunal held that the total amount for maintainability of claim will include both principal debt amount as well as interest on delayed payment which is stipulated in the invoice has to be added - the above judgment of Prashant Agarwal clearly supports the submission of learned counsel for the Respondent that for calculating the amount for maintainability of the claim, for threshold purpose, both Principal Amount and Interest has to be calculated when the interest is stipulated between the parties. The ground taken in the I.A. under 10A is clearly misconstrued since the default is being claimed by the Operational Creditor w.e.f. 26.07.2018 which was much before the 10A period. The mere fact that the Demand Notice was dated 21.12.2020 shall not has any effect on the maintainability of the application under Section 9 when default is committed on 26.07.2018 and admitted thereafter. In the facts of the present case, the Adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a demand notice under Section 8 dated 21.12.2020 claiming Principal Amount of Rs.56,63,061/- with interest amount of Rs.66,03,801/- and expenses totalling to Rs.1,34,69,435/-. Demand Notice was served on the Corporate Debtor but no reply was filed. v. An application under Section 9 was filed by the Operational Creditor claiming total operational debt of Rs.1,34,69,435/-. Adjudicating Authority issued notice on 09.08.2021. The Corporate Debtor appeared on 10.01.2022 and prayed for two weeks time to file reply in the matter which was allowed. Again on 14.02.2022, two weeks time was allowed to file reply. Thereafter, several dates were fixed, on which adjournment was sought by the Corporate Debtor on ground that judgment of this Tribunal in M/s. Jumbo Paper Products Ltd. vs. Hansraj Agro fresh Private Limited is pending in the Hon ble Supreme Court for consideration, which adjournment was allowed. vi. I.A. No. 1891 of 2022 was filed by the Corporate Debtor praying for dismissal of the Company Petition filed by the Operational Creditor. I.A. No. 1891 of 2022 filed by the Corporate Debtor came to be dismissed for non-prosecution on 21.10.2022. vii. On 13.12.2022, learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r being I.A. No. 1891 of 2022 ground of Section 10A was also taken since the demand notice was issued on 24.12.2020 and application was barred by 10A. 4. Learned counsel appearing for the Respondent No.1 submits that the reliance of the Appellant on the judgment of this Tribunal in M/s. Jumbo Paper Products Ltd. vs. Hansraj Agro fresh Private Limited has no application in the facts of the present case. There cannot be any dispute that after 24.03.2020 every application filed under Section 9 has to fulfil the threshold of Rs.1 Crore. In the present case, by the demand notice and Section 9 application the operational debt claimed by the Appellant was more than Rs.1 Crore. The Purchase Order included condition that if the goods are not supplied within 90 days, the advance shall be refunded with 18% interest p.a. It is submitted that the debt includes both Principal and Interest, which position of law has been settled by this Tribunal by its judgment in Company Appeal (AT) (Ins.) No. 690 of 2022, Prashant Agarwal vs. Vikash Parasrampuria Anr. . It is submitted that the Operational Creditor sent various emails in 2018 itself demanding back the amount, which emails contain both c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate on which the default occurred is mentioned as follows: 2. AMOUNT CLAIMED TO BE IN DEFAULT AND THE DATE ON WHICH THE DEFAULT OCCURRED (ATTACH THE WORKINGS FOR COMPUTATION OF AMOUNT AND DAYS OF DEFAULT IN TABULAR FORM) The total amount of debt payable by the Corporate Debtor to Operational Creditor is Rs.56,63,061 (Fifty Six Lakh sixty three thousand and Sixty One) and the total amount of Interest due and payable on unpaid Operational Debt as on 25th December, 2020 is 66,03,801/ (Rupees Sixty Six Lakhs Three Thousand Eight Hundred And One/-) (Including GST @ 9% and CGST @ 9%) and such further Interest @ 18 as would be due for the payment after 25th December, 2020 till the date of realization of the unpaid Operational Debt and expenses incurred towards the advertisement Rs.7,02,573/- legal charges of Rs.5,00,000/-. Hence, the Aggregate of total amount of unpaid Operational Debt due and payable by the Corporate Debtor to the Operational Creditor as on 25th December, 2020 is Rs 1,34,69,435/- (Rupees One Crore Thirty Four Lakhs Sixty Nine Thousand Four Thirty Five Only). The computation of amount of default and date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed does not contain any condition for payment of interest. Copy of the Purchase Orders were part of the Section 9 application which clearly contain the condition of interest. Furthermore, in the email which was sent by the Operational Creditor in the year 2018, the amount of interest was also included. The Corporate Debtor did not file any reply to the Section 9 application although twice the time was taken for filing reply. On 10.01.2022, the Adjudicating Authority granted two weeks time to file reply by following order: ORDER Counsels for both sides are present. Counsel appearing on behalf of the Corporate Debtor seeks two weeks time to file reply in the matter. The time prayed for is granted. List the matter on 14.2.2022. 11. Further on 14.02.2022, another order was passed granting two weeks time to the Appellant to file reply. Order dated 14.02.2022 is as follows: ORDER Mr. Hamid Ahamd Mir, Counsel for the Petitioner/ Operational Creditor is present. Mr. Mohit Arora, Counsel for the Corporate Debtor has also appeared and submits that he is yet to file Vakalatnama in the matter. He is directed to do the needful within two days time. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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