9911796707
TMI Blog2025 (2) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... arties which can reflect the terms and conditions of the interest - The ledger account of the CD also reflects that principal amount claimed by the OC has been shown as nil which means that the principal amount has already been paid and has been accepted as such by the OC as the principal amount has been received without any murmur, therefore, the Tribunal is not correct to hold that the amount paid by the CD to the OC of Rs. 4,97,22,461.16 was adjusted towards interest at the first instance by making reference to the decisions in the case of Asset Reconstruction Company India Limited [2022 (8) TMI 70 - SUPREME COURT] and BHEL [2012 (10) TMI 1016 - SUPREME COURT]. Whether the amount of Rs. 1,16,25,700.82/- can be claimed even as an interest by the OC only on the basis of the boilerplate provision in the invoice in the absence of any agreement between the parties towards for the payment of interest or anything which may reflect it by way of email or purchase order etc.? - HELD THAT:- In the case of Prashat Agarwal (Supra) it was a condition in the invoice that "interest will be charged @ 18% plus GST P.A after due date of the bill" and the dispute was regarding the maintainability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal, New Delhi (in short 'Tribunal') by which an application filed the Operational Creditor under Section 9 of the Insolvency and Bankruptcy Code, 2016 r/w Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (in short 'Rules') has been admitted. 2. The aforesaid application was filed by the Operational Creditor for an amount of Rs. 6,13,48,161.98/- out of which Rs. 4,97,22,461.16/- was towards the principal and Rs. 1,16,25,700.82 was towards the interest. 3. According to the Operational Creditor, the CD had already paid Rs. 4,97,22,461.16/- i.e. the principal amount out of Rs. 6,13,48,161.98 but the remaining amount of Rs. 1,16,25,700.82 includes both principal as well as the interest. 4. The Operational Creditor sent a demand notice to the CD on 05.07.2023 which was replied by the CD on 20.07.2023 and contested the amount demanded in the demand notice. 5. During the pendency of the proceedings before the Tribunal, the CD paid the entire amount of Rs. 4,97,22,461.16/- and sent an email to the Respondent on 31.01.2024. The subject of the email is as under:- "We would like to inform you that we have paid the entire outstanding of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the OC has relied upon invoice in which there is a provision for charging of interest at the rate of 12% in case of delay in payment. One such invoice is reproduced as under : - 12. It is submitted by the Appellant that the interest clause in the footnote of the invoice is merely a boilerplate provision and was never acknowledged or signed by the CD. 13. It is further submitted that nothing has been brought on record by the OC by way of any email, purchase order or any other document which may substantiate the claim that the interest was ever agreed upon by the parties. 14. It is also argued that even the clause of the footnote do not specify the date of payment to hold the delay for triggering the component of interest. 15. In this regard, he has relied upon two decisions in the case of Comet Performance Chemicals Pvt. Ltd. Vs. Aarvee Denims and Exports Limited CA (AT) (Ins) No. 1878 of 2024 decided on 13.01.2025 and Rohit Motawat Vs. Madhu Sharma Proprietor Hind Chem Corporation & Anr., CA (AT) (Ins) No. 1152 of 2022 decided on 03.02.2023. 16. On the other hand, Counsel for the OC/Respondent No. 2 has reiterated its stand taken before the Tribunal contending that the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Impugned Order dated 22.03.2024 shall remain stayed. In event the Appeal is dismissed the Appellant undertakes to pay the interest." 19. There is no dispute to the fact that out of total amount of Rs. 6,13,48,161.98/- Rs. 4,97,22,461.16 was towards the principal amount and Rs. 1,16,25,700.82/- was the interest. It is also not in dispute that Respondent No. 2 has claimed the interest only on the basis of invoice in which it has been mentioned that "in case of delay payment, interest will be charged @ 12% or as per the agreed terms" whereas no other document has been placed on record, much less, any purchase order or the agreement between the parties which can reflect the terms and conditions of the interest. It is also not in dispute that the CD had already paid the principal amount of Rs. 4,97,22,461.16/- and in this regard sent an email on 31.01.2024 informing the OC/R2 that there is no outstanding dues in their books of accounts and had also requested that the OC should also update its books and accounts accordingly and withdraw the company petition. There is no reply to this email by the OC/R2 that it had adjusted the amount of Rs. 4,97,22,461.16 first towards interest an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent relies upon Rishabh Infra Through Hari Mohan Gupta vs Versus Sadbhav Engineering Ltd [Company Appeal (AT) (Insolvency) No. 1881 of 2024] wherein it has been held that invoices with interest clauses, which were not part of the formal agreement, are unenforceable. This judgment supports the case of the Respondent. 18. Accordingly, we agree with the submissions of the Respondent and also the findings of the Adjudicating Authority that no interest can be charged against the supply of goods and services for delayed payments until and unless there is an express agreement between the parties. We find justification in the claim of the Respondent that the interest claim was unilaterally imposed and lacked any contractual basis." 22. Counsel for the Appellant has further relied upon a decision in the case of Rohit Motawat (Supra) and has referred to para 10 which is reproduced as under:- "10. We have heard counsel for the parties and after perusal of record, are of the considered opinion that the impugned order is patently illegal and deserves to be set aside. The question which has been raised by the Appellant, is hereby Company Appeal (AT) (Ins) No. 1152 of 2022 answered in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
