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Judgment
ORDER
21.02.2023: Heard Learned Counsel for the Appellant. This appeal has been filed against the order of the Adjudicating Authority dated 11.10.2022 by which IA/64(AHM)2022 filed by the Appellant has been rejected.
The Appellant filed the IA/64(AHM)2022 claiming the amount with regard to transportation services provided to the Corporate Debtor for the period January, 2021 to 28.06.2021. The CIRP against the Corporate Debtor commenced on 18.12.2020. The Adjudicating Authority has rejected the application were noticing the submission of the Respondent that amount of the operational debt and cannot be treated as CIRP cost.
We have heard the Learned Counsel for the Appellant and perused the record.
Inspite of notice having been issued and served to the Respondent, no-one has appeared for the Respondent.
Learned Counsel for the Appellant submits that in the application filed by the Appellant, it has been clearly mentioned that transportation services provided to the Corporate Debtor from the period January, 2021 to 28.06.2021 which has been specifically pleaded and the amount has been claimed for the aforesaid. In the prayer made in the application, following prayer has been made by the Appellant:-
“The applicant hereby pray before this Hon’ble Adjudicating Authority that it may graciously be pleased to:
i.Take the present application on record and issue notice to the respondent(s); and/or;
ii.To take note of the fact that the Respondent has not complied with the directions of the orders passed by this Hon’ble Tribunal on 29th June 2021.
iii.Take note of the conduct of the Respondent no. 1 who has acted against the provisions of IBC, 2016 and CIRP Regulations and pass necessary order(s)/direction(s) against the respondent no. 1 including directing the respondent no. 1 to take steps to make the payment of unpaid CIRP cost 2017140/- (Rupees Twenty Lakhs Seventeen Thousand One Hundred and Forty only) along with interest towards transportation services provided by the applicant to the corporate debtor during the CIRP period as mentioned in the present application and/or
iv.Pass any such further order(s)direction(s) which may be deemed fit in the interest of justice.
It is prayed accordingly.”
The Adjudicating Authority in its order while rejecting the application, has made following observations:-
“This application is filed by Baroda Freight Carrier, one of the Operational Creditors of the Corporate Debtor to treat sum of Rs. 2,17,140/- as the CIRP cost. In fact, CIRP of the Corporate Debtor is continued. Order of withdrawal dated 29.06.2021 has been stayed by the Hon’ble NCLAT and stay is still continued. None appeared for the Operational Creditor.
Learned Counsel for the Respondent pointed out that how the amount claimed could be CIRP cost. The amount as claimed appeared to be the operational debt and hence cannot be treated as CIRP at this stage.
In view of the above, this application is not maintainable and stands disposed of.”
When the Appellant in its application has clearly mentioned that the amount is being claimed for service provided from January, 2021 to June, 2021, there could not be any question of it being operational debt and Adjudicating Authority ought to have been considered the application on merit and the reasons given by Adjudicating Authority for rejecting the application are unsustainable. In result, the Appeal is allowed. The impugned order dated 11.10.2022 is set aside and the IA/64(AHM)2022 is revived before the Adjudicating Authority to be decided in accordance with law.