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2021 (7) TMI 613 - Tri - Insolvency and BankruptcySeeking to declare communication as null and void - seeking to direct the Resolution Professional to reject the claim submitted by the 1st Respondent - seeking declare the 1st Respondent's claim as erroneous - seeking reconstitution of CoC - HELD THAT:- There is no dispute between the parties that the terms of the Exit Agreement could not be fulfilled and the Claimant/1st Respondent continued to remain invested. In para 9.60 of the Award, it is also discussed that the Respondent/Corporate Debtor had committed a breach of the terms of the Exit Agreement which constituted an event of default under the SSA in and by which the Claimant is entitled to require the promoter to pay to the Claimant the Total Investment with an IRR of 30%. In pursuance of the same the Claimant/1st Respondent issued a notice on 02.02.2016 - In para 9.63 of the Award, it has been stated that in view of the notice dated 02.02.2016 issued by the Claimant/1st Respondent, the 1st Respondent is entitled to a sum of ₹ 143,40,00,000/-. The crux and gravamen of the contention being raised by the Applicant in the present Application is that as per the Award the 1st Respondent is entitled only to the Remainder Amount in terms of para 9.66. However, a perusal of the operative portion of the Award posits the fact that the 1st Respondent is entitled to a sum of ₹ 155,32,56,626/- and that the manner in which the said amount is required to be paid as set out in para 9.64. It is to be noted that the claim of the 1st Respondent is not in any manner linked with the Remainder Amount. The concept of the Remainder Amount in the SSA only sets out the details of the amount, how the payments are required to be made to the 1st Respondent when the project is being developed and it does not in any manner change the position, either in fact or in law that as per the said Award the Corporate Debtor is bound and liable to repay the amount which is due to the 1st Respondent - from a conjoint reading of the award and the definition of the term 'claim', and viewed from the said perspective, the contention of the Learned Counsel for the Applicant the extent payable by the Corporate Debtor could be paid only from the Remainder Amount as per the Award, would render the entire Award otiose and thereby it would amount to material change in the Award dated 31.01.2018. The contention of the Learned Counsel for the Applicant that as on date the Remainder Amount is NIL would be of no relevance since it does not dilute the claim of the Applicant in any manner - Application dismissed.
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