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2017 (6) TMI 836 - Tri - Insolvency and BankruptcyCorporate insolvency resolution process seeked by operational creditor - Insolvency and Bankruptcy Code, 2016 - maintainability of petition - petitioner having already taken recourse to the provisions of Section 9 of the Code against SEUPPTCL and filed a petition before the Allahabad Bench of NCLT? - Held that:- Petition is liable to be rejected. The petitioner himself has stated against column No. I of part IV of Form 5 at serial number (d) that the Corporate Debtor had fraudulently induced the applicant to enter into a Final Settlement and Consultancy Agreement dated 15.03.2016, without having intention to honour the obligation. If the petitioner himself has raised the issue of fraud and inducement and there is also a counter defence by the respondent with regard to the fraud and coercion, it would be the fittest case to categorically hold that there is a 'dispute' between the parties, which would disentitle the petitioner for an order of admission. It is pertinent to mention that the Final Settlement Agreement does not provide that in case SEUPPTCL fails to make the payment of ₹ 38 crores, the petitioner would be entitled to fall back upon the original agreement of the year 2010. That cannot be permissible, especially when the petitioner has already taken recourse to the proceedings under the Code against SEUPPTCL in Allahabad Bench of NCLT. Respondent has rightly referred to the term of the Final Settlement agreement dated 15.03.2016, which states that the parties now wish to enter into this Agreement by renegotiating the original sum payable to the petitioner as per clause 3 of the original agreement and have reached at an understanding to close the said service agreement to be replaced fully with this agreement. If this is the term of the Final Settlement Agreement, how could the petitioner file the insolvency resolution process against the respondent. It is stipulated that the amount agreed and understood between the parties shall be paid to the petitioner by SEUPPTCL agreeing further that the project stands completed.
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