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Judgment
The `Appellant’/`Applicant’ has preferred the instant Comp. App (AT) (CH) (INS) No. 351 of 2022, before this `Tribunal’, on being dissatisfied with the `impugned order’ dated 14.12.2021 in MA/1134/2019 in CP/507/2017, passed by the `Adjudicating Authority’, (`National Company Law Tribunal’), Division Bench-I, Chennai.
The `Adjudicating Authority’, (National Company Law Tribunal’), Division Bench-I, Chennai, while passing the `impugned order’ dated 14.12.2021 in MA/1134/2019 in CP/507/2017, filed by the `Appellant’/`Applicant’, under Section 60(5)(c) of the I & B Code, 2016, from paragraphs 4 to 9, had observed the following:
4.``The Applicant submits that the Corporate Debtor has not paid all the invoices. The invoice as well as the list of such invoices is placed at Annexure A2. The Applicant has also placed in the purchase order and ledger account at Annexure A3 and A4.
5.The Corporate Debtor in reply negates the claim of the Applicant and submits that during the CIRP period they have received goods and invoices aggregating to Rs.66,45,205/- out of which Rs.49,64,009/- was paid during the CIRP period and further that a sum of Rs.16,81,196/- is at best payable for invoices raised during the CIRP period.
6.It is further submitted that the Applicant had filed his proof of claim in Form-B on 17.03.2018 for a sum of Rs.71,57,246/-. Placed at page Nos. 32 to 36 in the index of typed set of documents filed on 08.01.2020 is the copy of the claim submitted by the Applicant. 7. It is submitted by the Corporate Debtor that as per the approved Resolution Plan pre CIRP dues of Operational Creditor were to be settled at 20% and to be paid on deferred basis. It is further submitted that the claim of the Applicant in present Application is not tenable and that the interest charge at an exorbitant rate of 36% per annum is not payable.
8.Heard both the parties and perused the documents as placed before us by both the parties. It appears that the Applicant herein has appropriated certain payments made during the CIRP period towards the pre CIRP dues for which the claim was pending before the IRP and the RP.
9.A Resolution Plan has been approved in the matter and which deals with the pre CIRP dues of the Operational Creditor. As per records available, claim by the Applicant was filed during the CIRP and was accepted by the RP for Rs.71,57,246/- which equals to the principal amount as claimed in the present Application, moreover, this fact is evident from the ledger account placed by the Applicant before us. We also noticed from the ledger account that Applicant has appropriated payments made by the Corporate Debtor, during CIRP, towards pre-CIRP dues.’’ and dismissed the said `Miscellaneous Application’.
Assailing the `Legality’, `Propriety’ and `Validity’ of the `impugned order’ dated 14.12.2021, passed by the `Adjudicating Authority’, (National Company Law Tribunal’), Division Bench-I, Chennai, in MA/1134/2019 in CP/507/2017, the `Appellant’/`Applicant’ in the instant `Appeal’ advances a plea that the `Adjudicating Authority’ had not assigned `proper and cogent reasons’, for dismissing the said `Miscellaneous Application’.
It is the plea of the `Appellant’/`Applicant’ that the `Adjudicating Authority’, had rejected the MA/1134/2019 in CP/507/2017, on the basis that the `Resolution Plan’ was approved and furthermore, the Appellant/Applicant’s pre `Corporate Insolvency Resolution Process’ dues were to be settled at 20% and in any event the `Adjudicating Authority’ had proceeded to observe in the `impugned order’, as per the records available, the `Claim’ made by the `Appellant’/`Applicant’ was filed during the `CIRP’ period, which was accepted by the `Resolution Professional’ for Rs.71,57,246/- , which was equivalent to the Principal Sum, as claimed in the `Application’.
The `Adjudicating Authority’ in the `impugned order’ dated 14.12.2021, at Paragraph 8 had observed that the `Appellant/Applicant’ had appropriated certain payments made during the `CIRP’ period, towards the pre `CIRP’ dues, for which the `Claim’ was pending before the `Interim Resolution Professional’ and the `Resolution Professional’.
Before the `Adjudicating Authority’, the `Respondent’/`Corporate Debtor’ in its `Counter’ had among other things averred that present `Claim’ was in relation to the invoices, for the period from 05.06.2017 to 31.01.2018, for a sum of Rs.71,57,245/-. Further, as per the `Books of Accounts of the Corporate Debtor`, a sum of Rs.54,62,588/- was reflected as `Outstanding’ as on 05.06.2017, before the start of `CIRP’ against the `Corporate Debtor’.
It is brought to the fore that certain payments were made to the `Appellant’/`Applicant’, amounting to Rs.49,64,009/- (on different dates of the Year 2017 and 2018 – vide Paragraph 9 of the Counter of the `Respondent’/`Corporate Debtor’), for the purpose of running the `Corporate Debtor’, as a going concern.
According to the `Respondent’/`Corporate Debtor’ out of the invoices raised by the `Appellant’/`Applicant’, during the `CIRP’ period out of Rs.66,45,205/-, after adjusting a sum of Rs.49,64,009/- paid during the `CIRP’ period, an amount of Rs.16,81,196/- was at best, payable for the invoices raised during the `CIRP’ period.
It is the version of the `Appellant’/`Applicant’ that in regard to the goods supplied by it, to the `Respondent’/`Corporate Debtor’ during `CIRP’ period, the `Resolution Professional’ had not paid the dues and hence the `Appellant’/`Applicant’ in the instant `Application’ in MA/1134/2019 in CP/507/2017 had claimed `Principal Sum’ of Rs.71,57,246/- and `Interest’ at 36% per annum, payable to it.
It cannot be denied as per the approved `Resolution Plan’ (Approved on 30.09.2019, by the `Adjudicating Authority’), the `Promoters’ took over the management of the `Corporate Debtor’ and the sum payable for the invoices raised during the `CIRP’ period will be paid, in the course of the business operations of the `Corporate Debtor’ and that apart, the sum towards `pre CIRP invoices will be paid at 20%’, within a period of three years.
It comes to be known that the `Adjudicating Authority’ had in the `impugned order’ in MA/1134/2019 in CP/507/2017 had in a categorical and emphatic manner made an observation that as per records available, `Claim’ by the `Applicant’ (Appellant) was filed during the `CIRP’ and was accepted by the `RP’ for Rs.71,57,246/- which equals to the principal amount, as claimed in the present `Application’, moreover, this fact was evident from the Ledger Account placed by the `Applicant’(Appellant). Besides this, the `Appellant’/`Applicant’ had appropriated the payments made by the `Respondent’/`Corporate Debtor’ (during CIRP, towards pre CIRP dues), as evident from the `Ledger Account’, as opined by the `Adjudicating Authority’ in the `impugned order’.
Cementing upon the aforesaid discussions and this `Tribunal’ based on the present surrounding facts and circumstances of the present case, comes to a consequent conclusion that the `Adjudicating Authority’ had assigned cogent, coherent and convincing reasons in dismissing the MA/1134/2019 in CP/507/2017, filed by the `Appellant’/`Applicant’ under Section 60(5)(c) of the I & B Code, 2016, and this `Tribunal’ sitting in `Appeal’, is in complete agreement with the view taken by the `Adjudicating Authority’ in dismissing the aforesaid `Miscellaneous Application’. Accordingly, the `Appeal’ is devoid of merits and it fails.
In fine, Comp. App. (AT) (CH) (INS) No. 351 of 2022 is dismissed.
No costs.