TMI Blog2020 (9) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition is filed on misconceived facts and law. The instant Application is filed with an intention to recover the alleged disputed outstanding amount, arise out of MOU dated 31.03.2018 and Settlement Deed dated 05.04.2018 - the instant Company Petition is liable to be dismissed as not maintainable. - C. P. (IB) No. 120/BB/2020 - - - Dated:- 26-6-2020 - Rajeswara Rao Vittanala, Member (J) and Ashutosh Chandra, Member (T) For the Appellant : Ramya Bai ORDER Rajeswara Rao Vittanala, Member (J) 1. C.P. (IB) No. 120/BB/2020 is filed by M/s. G.R. Constructions (hereinafter referred to as 'Petitioner/Operational Creditor') U/s 9 of the IBC, 2016, R/w Rule 6 of the I B (Application to Adjudicating Authority) Rules, 2016, by inter alia seeking to initiate Corporate Insolvency Resolution Process (CIRP) in respect of M/s. GRC Infra Private Limited, on the ground, that it has committed default for total amount of ₹ 8,00,00,000/- (Rupees Eight Crores Only) as on 15.10.2019 along with 18% p.a. interest till date. 2. Brief facts of the case, as mentioned in the Company Petition, which are relevant to the issue in question, are as follows: (1) M/s. G.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erational Creditor as agreed under the Memorandum of Settlement dated 05.04.2018. (5) After making certain payments to the vendors and clearance of a loan and other payables as on the date of settlement, the Corporate Debtor was liable to pay a sum of ₹ 10,88,71,351/- (Rupees Ten Crores Eighty Eight Lakhs Seventy One Thousand Three Hundred and Fifty One Only) to the Operational Creditor and R.M. Eshwar Naidu. Out of the said amount, on the date of settlement M/s. GRC Infra Pvt. Ltd. has paid a sum of ₹ 1,50,00,000/- and further issued has issued cheques towards the balance of ₹ 8,50,00,000/- (Rupees Eight Crores Fifty Lakhs only) to be encashed oh various date. The Corporate Debtor has issued a letter dated 06.07.2018 handling over the cheques for discharge of liability to the Operational Creditor. (6) It is stated that the first cheque in the series was supposed to be encashed. However, in meanwhile a mail was sent on 10.07.2019 requesting not to present the cheque for ₹ 50,00,000/- and asked to wait for more than one month. However, the Corporate Debtor had requested the Bank for 'Stop Payment' on the said cheque on 09.07.2019 itself. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin such extended time agreed by the other party. Such extension is the prerogative of the other party and shall be agreed to in writing. In the event of a party who is obligated to sign and give effect to the transfer is not extending the cooperation or essential to complete the transfer as aforesaid, the party so declining or refusing shall be treated as defaulting party/breaching party. A notice of default shall be given to the defaulting party to cure the default within 3 days. If the default or breach is not cured within 3 days, without prejudice to the available legal recourse rights, the other party is entitled to receive from the defaulting party a compensation which shall be not less than 2 times of the market value of the property in respect of which a default has been committed. Clause 20 provides the Arbitration which reads as under; Disputes if any arising while implementing this MOU, shall be resolved through arbitration under the Arbitration Conciliation Act, 1996 and such arbitration shall take place at Bangalore. The jurisdiction for any legal dispute will be the courts at Bengaluru. 6. Subsequently, Settlement Deed dated 05.04.2018 was executed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transferred and the amount to be paid to M/s. G.R. Constructions in lieu of Mr. R.M. Eshwar Naidu's resignation as a Director of the company and transfer of his shares in favour of the present Director of the Company Smt. Gutta Lakshmi. Further briefed about necessity for the company to take over responsibility under the MOU dated 31.03.2018 and SD dated 05.04.2018 to facilitate smooth transfer of assets from the Company and also accept transfer in favour of the Company. Accordingly after Detailed deliberations it is unanimously Resolved that terms and conditions agreed in the MOU dated 31.03.2018 and SD dated 05.04.2018 by Mr. G. Ramana Babu are binding on the Company as if the Company has entered into the said agreement as the subject matter of the said MOU and SD are the properties belonging to the Company and the money involved therein are that of the Company. The Company shall take over the responsibility and perform the obligations. Resolved further that Mr. G. Ramana Babu (DIN: 02590534) is authorised to take necessary steps to fulfil the obligations on behalf of the Company as agreed under the MOU dated 31.03.2018 and SD dated 05.04.2018 by taking necessary action to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate Debtor on 21.10.2019. He has admitted that the Corporate Debtor has sent Reply dated 31.10.2019 raising dispute. 10. In order to invoke the provisions of the Code, for an Application filed U/s 9 of the Code, primary conditions to be fulfilled are Debt in question should not be in dispute, and it cannot be filed with intention to recover disputed dues. As stated supra, the Respondent admittedly has raised a dispute, on substantial and legally tenable grounds, which cannot be examined under summary proceedings as contemplated under the provisions of the Code. 11. It is settled position of law that the Adjudicating Authority, constituted under the provisions of Code cannot be made a recovery forum. The Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited, (2018) 1 SCC 353 has inter alia, held that IBC, 2016 is not intended to be substitute to a recovery forum. Similarly, un-disputed debt is sine qua non for invoking provisions of the Code. In a judgement rendered by the Apex court, rendered in Transmission Corporation of A.P. Ltd. Vs. Equipment Conductors and Cables Ltd., (CA No. 9597 of 2018) dated 23rd October, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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