TMI Blog2023 (5) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in Himadri Foods Ltd. In the said case also, consent terms contemplated event of default and gave liberty to report the matter. In the present case 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. Another judgment which has been relied on by Learned Counsel for the Respondent is C.A. (AT) Ins. No. 294 of 2021-SRLK Enterprises LLP v. JALAN Transolutions (India) Ltd. [ 2021 (4) TMI 1358 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI ] - the adjudicating Authority while rejecting the revival application 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 dated 09.02.2022 hence the Judgement of SRLK Enterprises LLP is clearly distinguishable from the facts of the present case. Thus in the facts of the present case, the Adjudicating Authority committed error in rejecting the revival applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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Petition which has been rejected on 21.12.2022 by Adjudicating Authority observing that when the Company Petition was withdrawn after settlement there is no specific provision anywhere in the Code for reopening of the Company Petition. (iv) Challenging the Impugned Order, this Appeal has been filed. 3. Mr. Krishnendu Datta, Learned Sr. Counsel appearing for the Appellant submits that consent term dated 05th August, 2021 itself clearly stipulated that in event of default, the settlement shall be cancelled and company petition can be revived. It is submitted that the mere fact that no liberty was granted in the order passed in 12-A withdrawal application on account of settlement is inconsequential. The consent term itself provided for revival in event of default and the Adjudicating Authority ought to have permitted revival of the Company Petition. 4. Learned Counsel appearing for the Respondent refuting the submissions of Learned Sr. Counsel for the Appellant submits that there being no liberty granted by the Adjudicating Authority in its order dated 09.02.2022, no error has been committed by the Adjudicating Authority in reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rores 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 making payment of any of the tranches mentioned in Clause 4 above. In clause 10 of the Consent Term, there was undertaking on behalf of Respondent about revival of the Company Petition in case of default. Clause 10 is as follows: 10. NLL, NLHPL and the Promoter (Dharmesh Jain) agree, declare and confirm that time is of the essence of these terms and any deviation/default in adhering to the dates mentioned above, may be treated as an event of default and in such an event, ACRE shall be entitled to revive the present Company Application or initiate any other action that may accrue to it under law and the ACRE shall also be entitled to recover all expenses incurred in that regard. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly, 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 Needs (India) Pvt. Ltd. In the above case also, on consent terms, the company petition was withdrawn and when default was committed, application was filed for revival of the company petition which was rejected. This tribunal laid down following in paragraph 7, 8 and 9: 7. The Consent Terms in Clause 8 as has been extracted above clearly entitle the Financial Creditor to revive the Section 7 petition in event any default of the terms of the Consent Terms. Further, the order dated 05.02.2020 cannot be read as an order by which Consent Terms has not been taken on record when by the said order application filed alongwith the consent terms under Rule 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws: 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 that CIRP was sought to be terminated. The Adjudicating Authority banking upon the judgment of the Hon ble Apex Court in Swiss Ribbons Pvt. Ltd. Anr. v. Union of India Ors.- 2019 SCC OnLine SC 73 allowed the Appellants Financial Creditors to withdraw the application and terminated the CIRP. It further emerges from the order that neither the settlement terms were filed nor the same were brought on record and incorporated in the order of the Adjudicating Authority with liberty to revive/restore the CIRP in the event of the Corporate Debtor not adhering to the terms of the settlement or postdated cheques issued to Appellants bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 dated 09.02.2022 hence the Judgement of SRLK Enterprises LLP is clearly distinguishable from the facts of the present case. In paragraph 6 of the Judgement, following has been observed: 6. Going through the Impugned Order dated 26th February, 2021 which seeks to recall the Order dated 09th May, 2019 which also we have seen, we find it difficult to take a different view from the Adjudicating Authority. There is difference between withdrawal simplicitor making statement that parties have settled. It is different when bringing the settlement on record, and making it a part of the Order of withdrawal liberty is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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