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TMI Blog2023 (5) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... default of Rs. 2,86,89,35,109/-. In the company petition, a consent term was executed between the Financial Creditor and the Respondent. The consent term was placed on record before the Adjudicating Authority on 05th August, 2021 however the company petition was admitted on 05th August, 2021. Against the Order dated 05th August, 2021, C.A. (AT) Ins. No. 601 of 2021 was filed. This Appellate Tribunal permitted the suspended director to withdraw the Appeal with liberty to move the NCLT for withdrawal of Company Petition under Section 12-A of the Code. Direction was issued not to constitute the Committee of Creditors till the disposal of Section 12-A application. (ii) Based on consent terms, IRP filed an Application under Section 12A, the Adjudicating Authority vide order dated 09.02.2022 allowed the withdrawal of the Company Petition. (iii) The Respondent subsequent to the withdrawal of the Company Petition defaulted in making payment towards the second tranche as per consent term dated 05th August, 2021. The Appellant filed an I.A. No. 3196 of 2022 seeking revival of the Company Petition which has been rejected on 21.12.2022 by Adjudicating Authority observing that when the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Terms 4 189 crores On or before the expiry of 18 months from the date of these Consent Terms Total 389 crores NLL and NLHPL agree, declare and confirm that the Payment Date referred to above, means the date by which the entire amount towards the respective Tranches shall be credited to the Designated Account of ACRE as specified hereinbelow (Annexure 1). NLL and NLHPL jointly and severally guarantee and undertake the payment and performance of the Settlement Amount set out in the table hereinabove, as and when the same shall become due and payable. (ii) The parties agree and confirm that NLL and NLHPL shall have a right to make payment of an amount of Rs. 256 crores under Tranche 2 (instead of Rs. 100 crores as stipulated in clause 4(i) above) on or prior to the expiry of 12 months from the date of these Consent Terms, which amount shall be in addition to the amounts paid/payable under Tranches 1 and 2. In such an event, the total amounts paid under Tranches 1, 2 and 3 aggregating to Rs. 306 crores shall constitute the total Settlement Amount (instead of Rs. 339 crores)." 7. Clause 7 provided about event of defaults. One of the events was, default in mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot legally sustainable as they are at liberty to initiate appropriate legal action against the Corporate Debtor by filing separate Company Petition if they meet the eligibility criteria under section 7 of the Code. Therefore, the objection of both the objectors is legally not sustainable and liable to be rejected. After hearing the submissions on both sides and upon perusing the record, this Bench is of the considered opinion that the above Company Petition deserves to be allowed disregarding the above objections as the Corporate Debtor has entered into settlement with the Financial Creditor at whose behest the above Company Petition is filed. Accordingly, the above I.A. is allowed and the CIRP admission order dated 05th August, 2021 passed by this Bench against the Corporate Debtor is withdrawn by releasing the Corporate Debtor from all rigours of moratorium." 9. A perusal of the Order indicates that a separate consent terms were executed between the parties and the consent term was brought on record along with the Application. 10. Learned Counsel for the Appellant has placed reliance on Judgment of this Tribunal in C.A. (AT) Ins. No. 103 of 2022, Pooja Finlease v. Auto Need ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also, Company Petition was disposed of taking settlement on record and when Clause 10 of the Settlement specifically contains an undertaking by the Corporate Debtor for revival, corporate debtor can not be allowed to go back from its commitment as was made in the settlement. 14. Learned Counsel for the Respondent has placed reliance on judgement of this Tribunal in C.A. (AT) Ins. No. 92 of 2021, Krishna Garg & Anr. v. Pioneer Fabricators Pvt. Ltd. In the above case, this Tribunal in paragraph 2 has clearly recorded that neither the settlement term was filed nor the same were brought on record. Paragraph 2 of the Judgment is as follows: "2. Learned counsel for the Appellant has drawn our attention to order dated 27th June, 2019 passed in CP IB-1067/(ND)/2018 filed by the Appellants under Section 7 of the 'I&B Code' which brings it to fore that the CIRP was commenced against the Corporate Debtor on 12th June, 2019 with appointment of Interim Resolution Professional (IRP) and slapping of Moratorium. However, a settlement was arrived at between the parties, in pursuance whereof the Appellants received some post dated cheques. It appears that it was at the instance of the parties tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough the decision on which the Petitioner has placed reliance as well as averments made in the Application. We notice that vide order dated 09.05.2019 passed by this Bench, the petition (IB)- 1721(ND)2018 was withdrawn at the instance of the Financial Creditor and the CIRP was terminated. We further notice that no liberty was given to the Petitioner to revive the application. So, considering this, we are of the considered view that since this Adjudicating Authority was not the part of the settlement arrived in between the parties, rather the settlement was arrived outside the Tribunal. It was on the submissions of the Applicant, the main petition was dismissed as withdrawn and the CIRP was terminated. Therefore, we have no reason to recall our earlier order. Accordingly, the prayer of the Applicant to recall the earlier order is hereby rejected. Accordingly, the IA is DISMISSED."" 17. The adjudicating Authority while rejecting the revival application as noted above observed that the settlement was arrived in between the parties outside the Tribunal. In the present case, the Settlement was arrived and submitted before the Adjudicating Authority which was noticed in the Order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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