1. Heard Learned Counsel for the Appellant.
2. This Appeal has been filed against the order dated 28.07.2023 passed by the Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, by which IA No.1145/KB/2022 filed by the Appellant- Resolution Professional has been rejected. Resolution Professional has filed the application for refund of the amount of Rs.62,85,652/-. The case of the Resolution Professional was that the cheque was issued by the Corporate Debtor on 08.01.2022 which was encashed on 18.02.2022 whereas CIRP has been commenced on 12.02.2022. The Corporate Debtor filed a reply and it was stated that the cheque was issued on 08.01.2022 as per settlement between the parties. Adjudicating Authority considered the submissions of the parties and relying on the judgment of the Hon’ble Supreme Court in “K. Saraswathy v. P.S.S. Soma Sundaram Chettiar- (1989) 4 SCC 527” has rejected the application.
3. In paragraph 6 of the impugned order of the Adjudicating Authority, following observation has been made by referring to the judgment of the Hon’ble Supreme Court:-
“6. Ld. Counsel appearing for the respondent has relied on in the case of K. Saraswathy v. P.S.S. Soma Sundaram Chettiar¹ wherein in para 5, it has been held by the Hon'ble Apex Court that
"In CIT v. Ogale Glass Works Ltd., Ogale Wadi' it was laid down but this Court that payment by cheque realised subsequently on the cheque being honoured and en-cashed relates back to the date of the receipt of the cheque, and in law the date of payment is the date of delivery of the cheque, Payment by cheque is an ordinary incident of present day life, whether commercial or private, and unless it is specifically mentioned that payment must be in cash there is no reason why payment by cheque should not be taken to be due payment if the cheque is subsequently encashed in the ordinary course."
4. The law is well settled that on the date when cheque is handed over the payment shall be treated to have been made.
5. Learned Counsel for the Appellant submits that in paragraph 8 of the impugned order, the Adjudicating Authority has made observation that transaction is not preferential transaction. We have looked into the said observation. Observation was made as a fact since no application was filed for avoidance under Section 43 and that is not the finding of the Adjudicating Authority.
6. We, thus, are of the view that no error has been committed by the Adjudicating Authority by rejecting the application seeking refund of the amount. There is no merit in the Appeal. The Appeal is dismissed.
