TMI Blog2018 (2) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... nee under the Assignment Agreement of the operational debt cannot maintain this Petition for recovery of arbitral Award amount which has not been assigned to it. The material on record show that the Petitioner obtained assigned debt from MOKA on 14.11.2013 during the pendency of arbitral proceedings and the same was also brought to the notice of the learned Arbitrator. It is also a fact that MOKA also filed Section 138, N.I. Act case before the Criminal Court, and that fact was in the knowledge of the Petitioner. But Petitioner made self-serving statement in the Reply Affidavit that only recently it came to know about the winding up proceedings. Therefore, it is a clear case where the Petitioner cannot deny knowledge about the winding up proceedings filed by MOKA which is Assignor of the debt of ORG. Therefore, such a material fact has been suppressed by the Petitioner. The contract have to be construed strictly without altering the nature of the contract, as it may affect the interest of either of the parties adversely. In the case on hand, the Assignment Agreement is only with reference to the operational debt but not to the Award amount. Therefore, the assignment contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Negotiable Instruments Act against ORG. 3.2 MOKA along with M/s. Tulip Telecom Ltd., and M/s. Sterlite Technologies Ltd., being Creditors of ORG entered into an Agreement dated 20th April, 2012. In that Agreement it was stipulated that MOKA is entitled for the amount of ₹ 23.20 Crores. In the said Agreement it was agreed that if ₹ 14.99 Crores is received by MOKA within a period of four months it shall be considered as full and final settlement whereas the time limit can be extended only once by way of mutual consent of the parties and failing to pay the dues even thereafter the original invoice amount with interest charges, costs and damages can be pursued by MOKA. According to the Petitioner, the admitted and undisputed fact is that ORG is under an obligation to pay amount of ₹ 23.20 Crores as a legal and undisputed debt to MOKA. 3.3 On 17.11.2012, a supplementary agreement was entered into between the same parties wherein the time period to pay the amount of ₹ 14.99 Crores was extended to 31.3.2013 without altering the other conditions stipulated in the Principal Agreement dated 20th April, 2012. ORG has not paid the aforesaid amount. Therefore ORG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited . 4.2 The second objection is the Petition is filed by TVS Interconnect Systems Private Limited, allegedly in the capacity of an assignee. The Assignment Agreement dated 14.11.2013 refers to assignment of alleged debts mentioned therein to one TVS Interconnect Systems Limited and it is a Public Limited Company, whereas the present Petitioner is a Private Limited Company. 4.3 The Demand Notice served on the ORG is given by TVS Interconnect Systems Private Limited which has no locus standi to address such notice and thus it is not a valid notice. 4.4 Petitioner suppressed the following material facts; (a) MOKA Technology Services Limited preferred a winding up petition (CP No. 274 of 2016) before the Hon'ble High Court of Gujarat under the Companies Act pertaining to the present transaction but the same has not been disclosed in the Petition. (b) This Petition is filed for a claim based on Memorandum of Understanding dated 21.8.2008. The Invoices relied upon are of the year 2008 and therefore the alleged debt is barred by limitation. The Petition for initiation of Insolvency Resolution Process based on time barred debt is not maintainable. The time barred de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The Respondent filed a Reply Affidavit that even a notice was given by TVS Interconnect Systems Private Ltd. without disclosing that it was continuation of TVS Interconnect Systems Limited. 6.1 Assuming that the Petitioner is an assignee under an Assignment Agreement dated 14.11.2013. Petitioner cannot be treated as an Operational Creditor within the meaning of Section 5 sub-section (20) of the Code read with Section 5(6), 5(11) and 5(21) of the Code. It is further stated that MOKA initiated arbitration proceedings. MOKA's filing winding up petition before Hon'ble High Court of Gujarat clearly goes to show that MOKA ignored the Assignment Agreement dated 14.11.2013 and it has never been acted upon. It is further stated that in the absence of any assignment of rights under the Award dated 9.12.2016 Petitioner does not get any right as an Operational Creditor in respect of the Award. The statutory notice was not issued by an assignee under the Assignment Agreement and therefore there is no need to give reply to such notice. 7. Heard the arguments of learned counsel for the Petitioner and learned counsel for the Respondent. Basing on the contentions and the pleas o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute in the information utility, admission order has to be passed. Therefore, by a conjoint reading of Section 8 sub-section (2)(a) and Section 9(5)(i)(d) goes to show that if there exists a dispute and there is a record of dispute available in the information utility, then there is no need to admit the Petition filed by the Operational Creditor. In the case on hand, the arbitral proceedings were initiated by MOKA and it culminated into passing of the Award in favour of MOKA and against the ORG. The arbitration proceedings were initiated even before the issuance of notice under Section 8 of the Code by TVS Interconnect Systems Private Limited (Petitioner). Therefore, there is a record of dispute. Moreover, the material placed on record goes to show that MOKA also filed a Petition under Section 9 of the Arbitration and Conciliation Act seeking a restraint order against the TCIL. Further, Debt Recovery Tribunal also passed a restraint order against TCIL from disbursing the amounts to ORG. The above said material clearly show that there exists a dispute between the MOKA and ORG. Therefore, the Award amount involved in this Petition cannot be treated as an operational debt. Even assum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only on 16.11.2017, i.e., after the objections were filed by the Respondent before this Tribunal in this Petition. It is a fact that the Petitioner did not choose to disclose about the winding up proceedings in the Petition. It is stated by the Petitioner that it has got knowledge about the winding up proceedings filed by MOKA only recently. The material on record show that the Petitioner obtained assigned debt from MOKA on 14.11.2013 during the pendency of arbitral proceedings and the same was also brought to the notice of the learned Arbitrator. It is also a fact that MOKA also filed Section 138, N.I. Act case before the Criminal Court, and that fact was in the knowledge of the Petitioner. But Petitioner made self-serving statement in the Reply Affidavit that only recently it came to know about the winding up proceedings. Therefore, it is a clear case where the Petitioner cannot deny knowledge about the winding up proceedings filed by MOKA which is Assignor of the debt of ORG. Therefore, such a material fact has been suppressed by the Petitioner. 9. The learned Counsel appearing for the Respondent relied upon the decision rendered by the Hon'ble Supreme Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
