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2018 (4) TMI 1851 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Whether entering into consent terms over an operational debt for dismissal of earlier company petition will change the nature of the claim that has been made by the petitioner before this Bench or not? - HELD THAT:- It is a fact that this petitioner filed a company petition stating that it has rendered services to the corporate debtor for the construction of multi-purpose berth Nos. 1 and 2 at Dighi, Maharashtra, under the contract dated November 1, 2008. On having the services rendered and the corporate debtor having not paid, when the petitioner's side ready to argue the case, the corporate debtor entered into consent terms with the petitioner on March 29, 2017 agreeing as mentioned before by stating that the petitioner is entitled to file fresh company petition under the IB Code in the event payment has not been made as mentioned in the consent terms and also by saying that the arbitration proceedings pending before the hon'ble High Court would be treated as withdrawn in view of the consent terms arrived between the parties. For these consent terms have been entered into comprehensively dealing not only with the payments in relation to berth Nos. 1 and 2 at Dighi but also in respect to berth No. 3 at Agardanda, Maharashtra, a clause has been inserted that the arbitration application filed by the petitioner in respect to berth No. 3 would be treated as withdrawn by saying that arbitration proceedings stood as withdrawn in view of the consent terms arrived between the parties in respect to berth No. 3 as well. It is vividly clear that whatever disputes either in relation to the services given by the petitioner or in relation to any of the arbitration proceedings, it has to be understood that the parties arrived into an understanding that whatever disputes were there before entering into consent terms in respect to berth No. 3 would also be merged (doctrine of merger) as part of the consent terms, today the corporate debtor counsel could not say that there is a pre-existing dispute in respect to berth No. 3, therefore, this claim cannot be construed as hit by pre-existing disputes. When the parties arrived to a settlement or consent terms, whatever disputes that were in existence before execution of the consent terms, have to be treated as resolved by the consent terms subsequently arrived at - Merely because consent terms arrived between the parties will never change the nature of the claim, here the claim is the petitioner rendered services to which money was not paid, upon which company petition was filed since the corporate debtor entered into consent terms putting the petitioner under belief that he would pay money to the petitioner as agreed in the consent terms, the petitioner withdrew the company petition believing that the corporate debtor would make payment as agreed in the consent terms. It can be safely inferred that merely entering into consent terms, operational debt neither will become financial debt nor something else, the nature of the claim is same, it has to be treated as operational debt in view of the same for having the petitioner filed consent terms and the corporate debtor having defaulted in making payment as stated in the consent terms and there being no dispute in respect to the corporate debtor executing consent terms and filing the same before this Bench, there cannot be any argument saying that dispute is in existence in respect to the services provided by the petitioner. Petition admitted - moratorium declared.
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