TMI Blog2022 (9) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... examination of the claim the RP has also accepted regarding claim of the appellant of Rs. 1 crore. In view of the fact that the amount of Rs.10 crore was received by the appellant on 19.07.2018 and thereafter Rs.90 lacs after deducting Rs.10 lacs as TDS, it is opined that the Adjudicating Authority has rightly approved the decision of Resolution Professional by reducing appellants claim to Rs.1 crore only. There was no reason for the Adjudicating Authority to pass a different order. Moreover there is no dispute on approval of Resolution Plan by the Adjudicating Authority. Appeal dismissed. - COMPANY APPEAL (AT) (INS) NO.227 OF 2021 - - - Dated:- 5-9-2022 - ( Justice Rakesh Kumar ) Member ( Judicial ) And ( Dr. Ashok Kumar Mishra ) Member ( Technical ) For the Appellant : Mr. Apratim Animesh Thakur , Advocate For the Respondent : Mr Tishampati Sen , Ms Riddhi Sancheti , Mr. Anurag Anand , Mr. G. Karthikeyan , Advocates for R1 ORDER Heard Mr. Apratim Animesh Thakur, learned counsel for the Appellant and Mr. Tishampati Sen, learned counsel for the R1/RP. The present appeal under Section 61 of the Insolvency Bankruptcy Code, 2016 has been preferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent/Corporate has handed over the pay order of Rs.10,00,00,000/- (Rupees Ten Crores) towards the Principal Outstanding, to the Applicant/Financial Creditor bearing No.782581 dated June 30, 2018 drawn on HDFC Bank Ltd, Andheri (East) Branch, Mumbai, receipt whereof Applicant admits and acknowledges. ii) The Respondent/Corporate Debtor further undertake to make payment of additional sum of Rs.2,00,00,000/- (Rupees Two Crores only) towards full and final one-time settlement of the interest liability, within 180 days from the signing of these consent terms as agreed upon to the Applicant/Financial Creditor herein. The said payment of Rs.2,00,00,000/- (Rupees Two Crores only) towards full and final settled interest, the Respondent/Corporate Debtor undertakes to this Honourable Tribunal to pay to the Applicant/Financial Creditor as follows: a) Rs.1,00,00,000/- (Rupees One Crores only), less applicable TDS, to be paid by the Respondent/Corporate Debtor to the Applicant/Financial on or before October 18, 2018, b) Rs.50,00,000/- (Rupees Fifty lakhs only) less applicable TDS, to be paid by the Respondent/Corporate Debtor to the Applicant/Financial Creditor on or before De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed that in case of any default in making the payment of the amounts as agreed in Clause 1(g) above in any manner whatsoever, the Applicant/Financial Creditor shall be entitled to revive all the proceedings in relation to payment of Rs.2,00,00,000/- (Rupees Two crores only) or part thereof as may be left outstanding, which shall be withdrawn at present in pursuance to the execution of these consent terms and also take all such actions/file proceedings for the breach of the terms of these consent terms and undertaking given to the Honourable Tribunal, as the case may be. Learned counsel for the Respondent by way of referring to aforesaid agreement clause submits that in case of any deviation from the agreement only dispute was confined to the extent of Rs.2 crores or part thereof and it was not permissible to restore the earlier agreement. Learned Counsel for the Respondent No1 further submits that in the present dispute fact remains that CIRP was initiated on an application filed by M/s Dipco Private Ltd. He submits that the said application was admitted on 20.11.2018. He submits that despite the fact that as per IBC time has been prescribed for conclusion of proceedings b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00,000/- at the rate of 24% per annum payable quarterly against mortgage/sale of 15 flats. ii. that the Corporate Debtor collaterally signed and issued various documents in favour of the applicant including but not limited to Agreement/Memorandum of Understanding, Deed of Mortgage, Deed of Indemnity, Deed of Transfer, Power of Attorney, Possession Letter etc. towards security but failed to provide the original title deed, chain agreements/documents, etc. for necessary due diligence despite repeated requests and hence never completed the registration process of the said documents. iii.The Corporate Debtor failed to repay the Principal amount along with interest and hence, CP No. 425/2018 was filed under Section 7 for initiating CIRP and during the course of proceeding, prior to the admission of the petition, the applicant and the Corporate Debtor entered into Consent Terms dated 19.07.2018 for resolution of debt and all the disputes pertaining thereto. In line of this, the Company Petition bearing number 425 of 2018 was dismissed as withdrawn vide an order dated 19.07.2018 of this Tribunal. iv. However, the Corporate Debtor miserably failed to honour the terms of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest in terms of the original Agreement @24% per annum payable quarterly which was duly computed and submitted to the Respondent no. 01 in Form C dated 07.12.2018. 3. Because of the abovementioned reasons, the counsel for the applicant mentioned, that the applicant was constrained to file MA No. 1953 of 2019 before this Tribunal on 29.05.2019 praying therein the partial rejection of claim of applicant by the RP and directing him to accept the claim in entirety to the tune of Rs.6,52,95,183/- as submitted in Form C dated 07.12.2018. The applicant furthermore had asked in its interim prayer to restrain Respondent No. 01 from admitting and acting in pursuance of any Resolution Plan that undermines the interest of the applicant with respect to the claim of the Applicant being subject matter of the present case at hand. This application was dismissed by this Tribunal vide an order dated 13.11.2019 for being premature, without adjudicating upon the rights of the applicant on merits. 4. The counsel for the applicant mentioned that the Hon ble Supreme Court and the High Courts, in a catena of judgments, have held that in a situation where there is breach of the settlement agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anctioned this appointment vide an order dated 23.01.2019. 9. He further mentioned that the RP, on persistent request of the applicant to reconsider its claim in entirety, perused the documents on the basis of which the claim was made. He stated that the RP also perused a copy of Corporate Debtor s Balance Sheet dated 31.03.2018 wherein the amount due and payable to the applicant is shown to be Rs. 10,00,00,000/-. 10. The counsel for the applicant stated that it is pertinent to note that the applicant is facing serious tax demand and is in receipt of the notices from the Income Tax Department for non-payment of TDS amount deducted by the Corporate Debtor during the Financial Year 2015-16 2016-17 out of the interest amount paid and/or was payable to the Applicant by the Corporate Debtor. He further stated that it was a ploy by the Corporate Debtor with clear intention since beginning to confuse and mislead the applicant and not to pay the already agreed amount to the applicant as per the Consent Terms entered into by the applicant and the Corporate Debtor as the Corporate Debtor is a serious defaulter in paying the statutory dues also. 11. The Senior Counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ara 14(k) pg.30 of its application as well as at the letter marked as Annexure A-22 to the application. The Senior counsel for RP alleged that this is a preferential transaction as per Section 43 of the Code and the same cannot be avoided; ii. Rs. 50,00,000/- less applicable TDS, on or before 02.12.2018; iii. Rs. 50,00,000/- less applicable TDS, on or before 16.01.2019. In respect of the ii. and iii. transaction which were due on 02.12.2018 and 16.01.2019 respectively, it was mentioned that the Company Petition was admitted vide an order dated 20.11.2018 under Section 7 of the Code against the Corporate Debtor and hence, the applicant could have claimed his outstanding of only Rs. 1,00,00,000/- against the Corporate Debtor to the IRP/RP. 15. The counsel further mentioned that it is pertinent to mention here that out of total settlement amount of Rs.12,00,00,000/- agreed between the parties as provided in the Consent Terms, the applicant had received substantial amount of Rs.10,00,00,000/- towards principal outstanding at the time of signing the Consent Terms and Rs.1,00,00,000/- less applicable TDS towards interest as stated in aforementioned paras. Stating this, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough the pleadings, we believe that the RP has rightfully partially accepted the applicant s claim after due consideration of the documents provided to the IRP/RP. We would further like to observe that the RP has acted in accordance with the provisions of the Code and the applicable rules and regulations made thereunder and also followed the principles of law including the principles of fairness, impartiality and transparency. 20. Also, the Senior Counsel for the RP had stated that even otherwise, the applicant has submitted various documents along with its claim Form in respect of purported/alleged claim of security interest, these documents are without signature of either of the parties or all the parties, without dates, without details of amount or without applicable stamp duty or registration, as the case may be. In view of this, such documents were not taken in consideration by the IRP or RP for determining the purported/alleged claim of security interest of the applicant. 21. The Senior Counsel for the RP has already brought on record that the Principal amount due and payable was already paid by way of a Demand Draft bearing No. 148369. He also terms this transact ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
