TaxTMI 
TaxTMI 
2022 (9) TMI 487
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....he following reliefs:- i) To set aside the decision of the RP partially rejecting the claim of the applicant and direct him to admit the claim of applicant in entirety to the tune of Rs.6,52,95,183/- as submitted in Form C dated 07.12.2018. ii) To direct the respondents to follow procedures established by law and principles including principles of fairness, impartiality and transparency in the conduct of Corporate Insolvency Resolution Process (CIRP) for Respondent No.2. iii) To restrain RP from creating any third party interest and dealing with 15 flats situated at B5/1, Lok Nisarg CHS Ltd, Lok Nisarg, Vaishali Nagar, B.R. Road, Mulund West, Mumbai 400080 in a manner that undermines the interest of the applicant with respect to the claim and security interest of the applicant being subject matter of the case at hand. It is not in dispute that earlier the Appellant had filed a petition under Section 7 of the IBC for initiating Corporate Insolvency Resolution Process (hereinafter referred to as CIRP) against Respondent No.2, Ariisto Developers Pvt Ltd, due to non-payment of corporate debt to the tune of Rs.10 crores plus Rs.4 crores interest amount. However, before admission ....
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....or regarding non-payment of Rs.2 crores the Appellant was entitled to get the earlier agreement restored and in such a situation the Appellant was entitled to claim Rs. Rs.6,52,95,183/-. Learned counsel for the Appellant has also referred to Clause 1(h) of the Agreement dated 19th July, 2018 and as such he requests for directing the Adjudicating Authority to consider the claim to the tune of Rs.6,52,95,183/-. Since he has referred to Clause 1(h) of the Agreement it would be apt to reproduce the same as follows: "h. The parties are at present not ad-idem on the deduction of TDS on sum of Rs.2,00,00,000/- (Rupees Two Crores only) as payable in instalment as aforesaid. Parties with their respective chartered accountants/auditors shall meet and resolve the issues within a period of 15 days from today and arrive at a consensus. Till resolution of applicability of TDS on payment of Rs.2,00,00,000/- (Rupees Two crores only) in three instalments as aforesaid Corporate Debtor on July 20, 2018 shall deposit with Mr. Shyam Devani three post-dated cheques for the entire aggregate amount of Rs.2,00,00,000/- (Rupees Two Crores only) as aforesaid. After expiry of 15 days from the date hereof Co....
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....eal. He submits that filing of the present appeal by the Appellant is an abuse of process of law. Besides hearing we have minutely examined the material available on record. After going through the same, prima facie, we are of the opinion that there is no reason for interference with impugned order by this Tribunal. However, before proceeding we propose to reproduce the impugned order which has been passed by the Adjudicating Authority> "1.This is an application filed by TechEngg Project Services & Equipments (India) Private Limited against Mr. Jayesh Sanghrajka, who is the Resolution Professional of Ariisto Developers Pvt. Ltd. (hereinafter called as the "Corporate Debtor") seeking the following reliefs: i. To set aside the decision of the RP partially rejecting the claim of the applicant and direct him to admit the claim of applicant in entirety to the tune of Rs.6,52,95,183/- as submitted in Form C dated 07.12.2018. ii. To direct the respondents to follow procedures established by law and principles including principles of fairness, impartiality and transparency in the conduct of Corporate Insolvency Resolution Process (CIRP) for Respondent No. 02. iii. To restrain RP f....
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....he disputed amount in terms of Clause(h) was only Rs.20,00,000/- towards deduction of TDS if applicable at alland the remainder of Rs.1,80,00,000/- was admitted by the parties in any case whatsoever. However, the Chartered Accounts of both the Applicant as well as the Corporate Debtor discussed the TDS issue and came to the conclusion that no TDS was required to be deducted by the Corporate Debtor. But the Corporate Debtor raised an unnecessary demand for furnishing a certificate as provided in Form 26A (Rule 31 ACB) of the Income Tax Rules, 1962. To this, the counsel for the applicant had replied via email dated 17.08.2018 stating that the entire dispute pertaining to TDS stands resolved as discussed between the Chartered Accountants of the parties and no certificate under Form 26A(Rule 31ACB) was required. There was no reply by the Corporate Debtor to this email and the dispute was deemed to be resolved. vi. The counsel for the applicant further mentioned that there were cheques provided to the applicant by the Corporate Debtor in respect of Clause 1(I) of the Consent Terms which were dishonoured with the remarks "Funds Insufficient" and a legal notice was issued by the applica....
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....d. 5. He further stated that a conjoint reading Clause 1(b) and 1(c) of the Consent Terms has to be accorded and upon such a conjoint reading, it appears that the intention of the parties is that only upon the receipt of payment of full and final settlement amount of RS. 2,00,00,000/- against interest due, the settlement agreement comes to full effect and the original cause of action would stand discharged as until then all the documents in relation to which the cause of action has arisen is kept in escrow. Clause 1(c) makes it categorical that handing over of the documents to the Corporate Debtor is to take place only when the full and final settlement amount of Rs.2,00,00,000/- against interest due is received by the applicant. 6. The senior counsel appearing for the RP has denied all the contentions levied against the RP stating that they are false, baseless and devoid of merits and has submitted that he has acted according to the provisions of the Code. He submitted that the RP has rejected the claim of the applicant after due verification of documents submitted by the applicant along with its proof of claim (Form C) as well as books of accounts of the Corporate Debtor. He ....
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.... reading of the Consent Terms, specially clauses 1, 1(a), 1(b), 4, 5 and 6, it is apparent that the parties had entered into the aforesaid Consent Terms with an intention of full and final settlement of all their disputes including but not limited to the one arising out of or in connection to CP 425/2018. 12. He further stated that nowhere in the Consent Terms it is mentioned that the applicant would be entitled to claim an alleged amount of Rs. 6,52,95,183/-. Rather, Clause 1(k) of the Consent Terms provides that in case of default in Corporate Debtor's payment, the Applicant shall be entitled to revive all proceedings in relation to payment of Rs. 2,00,00,000/- (Rupees Two Crores Only) or any part thereof as may be left outstanding, which shall be withdrawn at present in pursuance to the execution of the Consent Terms and also take all such actions/file proceedings for the breach of Consent Terms and undertaking given to the Hon'ble Tribunal, as the case may be. 13. The Senior Counsel for the RP further alleged that pursuant to the Consent Terms, the Corporate Debtor had paid principal amount of Rs. 10,00,00,000/- through pay order bearing no. 782581 dated 30.06.2018 drawn on....
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....that Clause 1(b) of the Consent Terms provides that upon receipt of the principal amount of Rs.10,00,00,000/-, the applicant would have to forthwith give up all the rights arising out of all Deeds, Agreements Documents, Negotiable Instruments, Memorandum of Understanding etc. executed by the Corporate Debtor in the captioned matter. And as the applicant has admittedly received the aforesaid principal amount upon signing of the Consent Terms, the applicant is barred from claiming security interest. 17. The Senior Counsel for the RP further stated that the copies of the letters submitted to the RP by the applicant vide email dated 26.05.2019 are nothing but not only various correspondences between the applicant and the Secretary of the Society wherein the aforesaid 15 Flats of the Corporate Debtor are situated and the same do not prove any right or interest of the Applicant in the said 15 flats of the Corporate Debtor. 18. Making the above submissions, the Senior Counsel for the RP prayed for the dismissal of this application on the following grounds: i. that the applicant's claim is unreasonable, baseless and hence, inadmissible in the light of the Consent Terms dated 19.07.20....