Kailash Motilal Kakrania Vs Apurva Oil and Industries Private Limited (NCLAT Delhi)
NCLAT Delhi held that there is no provision under the Insolvency and Bankruptcy Code which allows set of/adjustment/ counter claim against financial debt for calculating threshold limit prescribed under section 4 of the Code.
Facts- Mr. Kailash Motilal Kakrania and his wife Mrs. Manju Kailash Kakrania, collectively referred as Appellants hereinafter had filed a petition u/s. 7 of the Code on 04.09.2021 against Apurva Oil and Industries Private Limited (corporate debtor). Mr. Kailash Motilal Kakrania was a shareholder and erstwhile Director of the Corporate Debtor and his wife Mrs. Manju Kailash Kakrania was a shareholder of the Corporate Debtor.
The Appellants in their petition u/s. 7 of the Code have claimed a default of Rs. 1,22,42,927/- which includes Rs. 1,01,50,009/- towards principal amount and Rs. 20,92,918/-towards interest calculated at the rate of 9% per annum till 30.06.2021 as per the Balance Sheet of the Corporate Debtor.
The petition of Appellants was rejected by NCLT vide impugned order dated 14.07.2023 primarily for the reason that the Appellants do not meet the threshold prescribed u/s. 4 of the Code as no interest on the said loan appears to have been agreed by the Corporate Debtor in the relevant period and that there was a counter claim of the Corporate Debtor of Rs. 10,85,850/- which brought the debt to less than Rs. One Crore.
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