Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + AT Insolvency and Bankruptcy - 2021 (3) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (3) TMI 684 - AT - Insolvency and BankruptcyReinstating CIRP - Failure of corporate debtor to replay as per the settlement agreement - essence of time in the Settlement Agreement - Section 9 of IBC - debt due and payable by Operational Creditor - allegation is that Adjudicating Authority has gone beyond the mandate of Section 9 of the IBC in passing the Impugned Order - Appellant has claimed that the timeline of payment of instalments that was agreed by both the parties was the “essence of the contract”, as mentioned in Clause 8 of the Settlement with further stipulation that the Corporate Debtor would not seek any extension in these timelines - HELD THAT:- The time was not of essence in the Settlement Agreement. Hence any consequence upon default due to delay in payments cannot fall on the Respondent. From the observation of facts presented above, we come to this inference that a fresh application under Section 9 of IBC cannot be triggered in accordance with Clause 11 of the Settlement Agreement. Since the Appellant accepted delayed payments of certain instalments without raising a demur or objection, his conduct led the Respondent to believe that some delay in payment was acceptable to the Appellant which would prima facie imply that time was not of essence in the Settlement Agreement. Thus, time was not of essence in the Settlement. Whether any compensation should accrue to the Appellant or not is not a matter for adjudication in this appeal. Also whether Section 62 of the Contract Act, 1872 will apply in the present case, which would change the contract to a new one is not relevant in the present appeal. If the Appellant has any grievance on this account, he could certainly approach the appropriate forum for redressal on this issue which relates to the enforcement of the Settlement Agreement and whether it will be substituted by a new one, if it so wishes. The Settlement Agreement, as has been operated by both the parties, does not show that time was of essence in it - appeal dismissed.
|