O R D E R

(Hybrid Mode)

Per: Justice Rakesh Kumar Jain (Oral)

09.07.2024: This order shall dispose of two appeals bearing Company Appeal (AT) (Ins) No. 1680 of 2023 titled as Chemical Suppliers India Pvt. Ltd. Vs. Kanodia Technoplast Ltd. (hereinafter referred to as the first appeal) filed against the order dated

16.10.2023 by which the National Company Law Tribunal, New Delhi, Bench-IV has dismissed the application filed by the appellant under Section 9 of the Insolvency & Bankruptcy Code, 2016 (in short ‘Code’) bearing CP No. (IB)-734 (ND)/2021, inter alia, on the ground that the application is filed under Section 9 for resolution of the amount based upon invoices some of which fall within the period from 23.03.2020 - 24.03.2021 is hit by Section 10A of the code and even if of some invoices which crosses the threshold, provided under Section 4, are beyond the aforesaid period, the segregation is not allowed and the application as a whole has to be dismissed. Company Appeal (AT) (Ins) No. 1140 of 2023 has been filed by Rashtriya Polymers & Solvents vs. Kanodia Technoplast Ltd. (hereinafter referred to as second appeal) against the order dated 12.07.2023 by which application filed by the said appellant under Section 9 of the Code, has been dismissed.

2. Both these matters are being taken up together because in both the cases, the Corporate Debtor is the same and in case anyone of the appeal is allowed then the second appeal would become redundant or infructuous because two CIRPs cannot be initiated against the same CD.

3. For the sake of convenience, we are taking up the first appeal. The brief facts of this case are that the appellant issued a demand notice dated 30.09.2021 to the respondent demanding payment of outstanding debt of Rs. 6,13,26,856/- along with interest of Rs. 1,71,67,229/- calculated @ 24%, based upon 60 invoices starting from 01.07.2020 to 03.06.2021. The demand notice was replied by the respondent on 08.10.2021.

4. Since the amount claimed by the appellant was not resolved by the respondent, therefore, the appellant filed the application under Section 9 of the Code on 02.11.2021 for resolution of the amount of Rs. 7,84,94,085/-.

5. This application has been dismissed by the Tribunal on the ground that out of the 60 invoices, 53 invoices are of the period between 01.07.2020 till 23.03.2021 which falls within the period between 23.03.2020-24.03.2021 i.e. the period prescribed under Section 10A of the Code during which if the default is committed, the application under Section 7, 9 & 10 cannot be filed at all.

6. The Tribunal has held, relying upon the decision of Hon’ble Supreme Court in the case of Ramesh Kymal Vs. Siemens Gamesa Renewable Power Private Limited (Civil Appeal No. 4050 of 2020) decided on 09.02.2021 and the decision of this Court in Company Appeal (AT) (Ins) No. 387 of 2023 Yatra Online limited Vs Ezeego One Travel & Tours Limited decided on 31.03.2023 that the application under Section 9 was not maintainable because the segregation of the amount of the period falling under Section 10A was not possible.

7. Learned Counsel for the appellant has argued that the finding recorded by the Tribunal that the amount cannot be segregated is contrary to the facts noticed by the Tribunal. In this regard, he has referred to paragraph 11 of the impugned order in which the Tribunal itself has made the segregation of the amount based upon Invoices No. 1 to 53, which falls within the period provided under Section 10A and Invoices No. 54 to 60 falls after the period provided under Section 10A. The said chart is reproduced for a quick glance which read as under:

8. It is further submitted that the amount arising out of the invoices from 54 to 60 is Rs. 1,65,89,311/- which is more than the amount of threshold provided under Section 4 of Rs. 1 crore, therefore, the application could not have been dismissed by the Ld. Tribunal and deserves to be admitted. In support of his submissions, he has relied upon a decision of this