Whether mentioning of interest component in invoices and subsequent action by Corporate Debtor on these invoices would mean a novation of Contract and interest be combined with the principal debt to meet the threshold limit of Rs. 1 Crore limit for filing a petition under Section 9 of IBC? – Chemico International Pvt. Ltd. Vs. Cygnet Industries Ltd. – NCLT Kolkata Bench
Hon’ble NCLT Kolkata Bench holds that:
(i) Since neither the Operational creditor has claimed any discreet amount towards the purported interest in the invoices, nor the CD acknowledged the provision thereof by its conduct or otherwise. Hence mere mentioning of a condition as a footnote without any causative or remedial ramifications can be considered to be a part of the agreement.
(ii) The Purchase Order clearly states that if there are any special conditions given by either side it has to be accepted in writing by the buyer (in this case the Corporate Debtor). Since the Purchase order was first accepted by the Operational Creditor, they agreed to this clause by sending the required goods. So, if they eventually gave any counter offer in their Tax Invoices, they too had to get it accepted clearly in writing by the Corporate Debtor. Since there was neither any exclusive writing about the 21% p. a interest which was accepted by the Corporate Debtor there is no question of Counter Offer.
