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TMI Blog2024 (10) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... n 9 about the bonafide mistake which has been pleaded in the rejoinder filed in the present appeal in order to avoid the pleadings already set up in the application filed under Section 9 of the Code in which it was averred that the amount in question has been invested which is now sought to be changed as a loan. It is pertinent to mention that Respondent has already paid the principal amount of Rs. 58,30,077/- to the Appellant but the Appellant is pursuing the present appeal for the resolution of the amount of interest, however, in our considered opinion, the petition filed before the Adjudicating Authority under Section 7 is an abuse of process of law because the Appellant cannot change the stand taken in the application filed under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case are that the Appellant served the notice in Form-3, in terms of Section 8 of the Code dated 11.09.2018 upon the Respondent in which it was averred that the Operational Creditor has invested the amount into the LLP which was ultimately used by the Director of Corporate Debtor as per the board resolution dated 21.09.2017 . 3. It is further averred in the said application that however, the details of the unpaid debt as per the ledger account is Rs. 58,30,077/- plus interest of INR 20,87,136/-. 4. The application under Section 9 was filed by the Appellant on 13.11.2018 in which the Appellant has made the following averments the Operational Creditor on the request of Mr. Gaurav Hargovindbhai Dave (Director of the corporate debtor) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 01.01.2019 is reproduced as under:- The instant application is filed under Section 9 of the Insolvency and Bankruptcy Code by the petitioner namely Premjayanti Enterprise Pvt. Ltd. upon Corporate Debtor i.e. Shivam Water Treaters Pvt. Ltd. On coming to know about the filing of the instant application, the Ld. Lawyer namely Advocate Mr. Pavan Godiawala appeared on behalf of the RP and apprised this Bench with regard to the passing of an order under Section 7 of the Insolvency and Bankruptcy Code, on 15.10.2018 by the National Company Law Tribunal, Mumbai Bench, against the present Corporate Debtor i.e. Shivam Water Treaters Pvt. Ltd., wherein, Interim Resolution Professional -RP is already appointed. Ld. Lawyer appearing on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion filed by the Appellant on the ground that the application under Section 7 is not maintainable regarding the interest only as it was not found to be a financial debt. 12. Counsel for the appellant has argued that the Adjudicating Authority has committed an error in dismissing the application because the amount of interest can also be claimed by filing an application under Section 7 and has relied upon a decision of this Court rendered in Company Appeal (AT) (Ins.) No. 882 of 2022 titled as Base Realtors Pvt. Ltd. vs. Grand Realcon Pvt. Ltd. decided on 15.11.2022. 13. On the other hand, counsel for Respondent has submitted that the Appellant did not approach the Court with clean hands and is guilty of supprssio veri or suggestion falsi. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leadings and documentary evidence. The applications are filed on printed forms provided in the Rules and the averments made in the application are supported by an affidavit of the parties. 17. In the present case, the Appellant first approached the Adjudicating Authority with the application filed under Section 9 alleging itself to be an Operational Creditor and the amount in question as an investment. This averment was made not only in the demand notice but also in the main application which was supported by an affidavit. Thus, averments made in the application filed under Section 9 were on oath by the Appellant but the said application was withdrawn because an application filed under Section 7 of the Code by some other financial creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itigation. 19. In view of the aforesaid facts and circumstances, the conduct of the Appellant is depreciable and deplorable because this kind of practice is not acceptable before this Court, therefore, this is one such case in which the Appellant deserves to be saddled with costs for initiating a frivolous litigation. Hence, while dismissing the present appeal, we impose a cost of Rs. 1 Lac. upon the Appellant which shall be paid by it to the Respondent by way of a demand draft within a period of 30 days from the date of passing of this order. 20. It is made clear that in case this amount is not paid by the Appellant as directed, the Respondent may approach this Court again with an application so that appropriate proceedings may be initiate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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