Steel India Vs M/s. Theme Developers Pvt Ltd (NCLT Mumbai)
We have carefully gone through the pleadings on record and pursued the submissions made by the counsels for both the sides. On careful perusal of the documents it is noticed that the Corporate Debtor has already paid the entire Principal amount to the Petitioner, which the Petitioner has accepted in his submissions. Therefore, it can be said that the Demand Notice dated 15.01.2019 was sent with the sole purpose of demanding payment of remaining amount of Rs. 22, 64,054/-, which in toto is interest payable, on the principal amount.
This Petition is based on the second Demand Notice issued by the Petitioner under Section 8 of the Code. The Petitioner purposefully screened the first Demand Notice dated 28 December 2018 and the reply of the Corporate Debtor to the said Demand Notice.
The invoices enclosed to the Petition were perused by the Bench and there is no provision of charging of interest by the Petitioner. Hence, the claim of interest by the Petitioner is devoid of merit.
The Contention of the Petitioner that TDS was deducted by the Corporate Debtor on account of payment of interest does not hold water in view of the fact that the said TDS is under section 194C of the Income Tax Act, 1961 which deals with TDS on payment by a Contractor for carrying out any work. In fact, if the TDS is under Section 194A, which deals with TDS on interest payment, the counsel for the Corporate Debtor maybe right to some extent. Hence this contention also fails.
Another contention of the Corporate Debtor is that, the Balance Sheet of the Corporate Debtor for 2015-16 at pg. 231 of the Reply shows that the Corporate Debtor factored interest on delayed payment. However, an ordinary scanning of the Pg. 221, there is an item showing as interest on delayed payment to the extent of Rs. 2,90,459/- but that cannot be relatable to interest claim of the Petitioner which is to the extent of Rs. 22,64,054/- for 2015-2018. It is also to be noted that the interest on delayed payment for the year ending 31.03.2015 was shown as Hence, this contention of the Petitioner also fails.
The above discussion clearly reveals that the dispute raised by the Corporate Debtor that they are not liable to pay interest as claimed by the Petitioner, which was categorically informed to the petitioner when reply was given to the first Demand Notice, as early as on 10.01.2019, whereas the second Demand Notice based on which this petition is filed was sent only on 15.01.2019, this is a clear dispute in existence as defined under Section 5(6)(a) of the Code.
In view of the above discussion, the Petition is dismissed.
FULL TEXT OF ORDER OF NATIONAL COMPANY LAW TRIBUNAL
1. This Company Petition is filed by Steel India (hereinafter called “Petitioner”) against Theme Developers Pvt. Ltd. (hereinafter called “Corporate Debtor”) seeking to set in motion the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor alleging that Corporate Debtor committed default in making payment to the extent of Rs. 22,64,054/- which is inclusive of interest calculated @2% on the delayed payments against goods sold and delivered by Petitioner to the Corporate Debtor, by invoking the provisions of Section 9 of I & B Code (hereinafter called “Code”) read with Rule 6 of Insolvency & Bankruptcy (AAA) Rules, 2016.
Facts as per the Petition
2. The Petition reveals that the Petitioner supplied the Corporate Debtor with Steel Bars for their construction activity at its project sites. For these supplies various invoices have been raised by the Petitioner. Following is a list of invoices consisting of relevant details, that have been raised by the Petitioner for the year 2015:
