Prashant Agarwal
Prashant Agarwal
Prashant Agarwal
PRINCIPAL BENCH
Versus
1. Vikash Parasrampuria,
Sole Proprietor of Chiranjilal Yarns
Trading
Having office at Room No. 5, 1st Floor,
Jaihind Building No. 1, Dr. A.M. Road,
Bhuleshwar, Mumbai- 400002. …Respondent No. 1
For Respondent : Mr. Saurabh Pandya, Mr. Viraj Parikh, Mr. Mahur
Mahajan, Advocate for R-1.
Ms. Rubina Khan & Mr. Rohit Gupta, Advocate
for R-2.
The Present Appeal is filed against the Impugned Order (IO) dated
under Section 9 of the Insolvency & Bankruptcy Code, 2016 (in short IBC)
Page-19 to 26.
Brief Facts:
the Operational Creditor (in short OC) is supplier of different type of yarns
and has supplied goods to Bombay Rayons Fashions Ltd. who is the Corporate
Debtor herein (in short CD). The OC has raised invoices between March, 2017
and January 2020, wherein, OC supplied goods for Rs. 2,02,26,017/- under
nine invoices. The CD has paid three invoices with substantial delay; for one
invoice part payment made and remaining five invoices, CD has failed to make
any payment.
of IRP.
Appellant’s Submissions:
this Tribunal that no amount has been paid to settle the matter as mentioned
present case the principal amount of debt is only Rs. 97,87,220/- which is
below the prescribed threshold limit. He argued that as per notification No.
Government of India, threshold limit of Rs. 1 Crore will be applicable for any
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.
action arose as early in 2017 but the petition was filed on 16 December, 2020
Findings
9. We have pursued the record available and also heard Learned Counsels
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
issue and therefore issue of limitation as raised by Learned Counsel for the
Issue of maintainability:
only Rs. 97,87,220 which is below the minimum threshold limit of Rs. 1 crore
as per Section 4 of IBC to file Application for CIRP proceeding under Section
9 of IBC.
Vide the notification No. S.O 1205 (E) dated 24.3.2020 issued by the
increased from Rs. 1 lakh to Rs. 1 crore for purpose of Section 4 of IBC.
(iii) Learned Counsel for Appellant has cited few cases as discussed earlier
and noted that case of ‘Reliance Cellulose Products Limited v. Oil and
Private Limited vs. State of Kerala’ was with respect to Section 31(7),
(b) As regard case of ‘Steel India vs. Theme Developers Pvt. Ltd.’, The
No. 47 to 55 of the Memo of Appeal, Volume I and noticed that it has clearly
plus GST P.A after due date of the bill” unlike in cited judgment of NCLAT
‘Steel India vs. Theme Developers Pvt. Ltd.’ (Supra) where there was no
interest on delayed payment in all nine invoices in present case before this
Tribunal. Hence, the cited case by Learned Counsel is not exactly and directly
relevant.
(c) The case of ‘CBRE South Asia Private Limited v. United Concept and
(iv) We have also noted that Adjudicating Authority has also referred one
minimum threshold limit for Section 4 of IBC in the Impugned Order itself (at
“(f)…..
three invoices has been made in full and for one invoice in part against said
invoices by CD and no dispute on this clause was ever raised as noted from
legal definition of debt. The definition of debt as per section 3(11) of IBC is as
under:-
follows:-
(b) right to remedy for breach of contract under any law for
the time being in force, if such breach gives rise to a right to
payment, whether or not such right is reduced to judgment,
fixed, matured, unmatured, disputed, undisputed, secured
or unsecured;
and therefore, this will entitle for “right to payment” (Section 3(6) IBC) and
(vi) It is, therefore, clear from these facts that the total amount for
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,
Section 4 IBC read with notification No. S.O 1205 (E) dated 24.3.2020
(Supra), and meets the criteria of Rs. 1crore as per Section 4 of IBC and
(vii) We, therefore, do not find any merit in the present appeal and dismiss
the same.
[Naresh Salecha]
Member (Technical)
Simran