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TMI Blog2023 (9) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... hority' National Company Law Tribunal, Bengaluru Bench, Bengaluru in C.P. (IB) No. 131/BB/2021 Mr. Maulikkirithhai Shah/the 'Operational Creditor' preferred this 'Appeal' under Section 61(1) of the Insolvency and Bankruptcy Code, 2016 [hereinafter referred to as the 'Code']. By the 'Impugned Order', the 'Adjudicating Authority' has dismissed the Application filed under Section 9 of the Code, observing as follows: "6. It is observed by this Tribunal that as per Part IV of Form No.5 the Amount in default mentioned was Rs. 8,46,32,553/- as on 31.01.2021 and payable along with running interest at the rate of 15% p.a on commercial rate of interest. It is discussed above that the corporate debtor has paid the amount of Rs. 2,75,58,000/- out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of the considered opinion that the present petition is filed for recovery of interest amount which is not maintainable under section 9 of the code." 2. The Learned Counsel for the 'Appellant' vehemently contended that the 'Adjudicating Authority' has failed to take into consideration that pursuant to the 'Settlement Agreement' dated 01.11.2018, cheques were issued by the Respondent/Corporate Debtor and were 'dishonoured'. The mere fact that cheques were given construes that there is an admission of liability by the Respondent/Corporate Debtor. It is submitted that the Operational Creditor was rendering services of 'Business Development' for the Corporate Debtor and the amount of Rs.8,46,32,553/- was due and payable along with a running ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was categorically mentioned; that last payment of Rs.15,00,000/-was received on 19.10.2017 and the MOU as well as the correspondence and statement of ledger account was produced with the statutory demand notice. 6. It is submitted that on receipt of demand notice in Form No.3, the Corporate Debtor approached the Operational Creditor and submitted that on account of severe financial crises an amount of Rs.4,50,00,000/- to be accepted instead of the total default amount of Rs.7,48,72,688/- and with a view to win trust, also induced the Operational Creditor to enter into a fresh MOU and made payment of Rs.50,00,000/-by RTGS into the account of the Operational Creditor and further undertook to make the payment of Rs.4,00,00,000/- on or before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yable is only Rs.4,42,000/- which is below the minimum threshold as per Section 4 of the Code and therefore sought for dismissal of the Petition. 9. The main issue which arises in this 'Appeal' is whether the 'Adjudicating Authority' was justified in dismissing the Section 9 Petition on the ground that the 'Settlement Agreement' was anti-dated, unstamped and unregistered. At the outset, the 'Settlement Agreement' dated 01.11.2018, for ready reference is reproduced as hereunder : It is seen from the afore noted Agreement, relied upon by the 'Appellant' that it is dated 01.11.2018 whereas it is specified in the Agreement that the Corporate Debtor further undertakes unequivocally to make the residual Settlement amount of Rs.4,00,00,000/-(Rup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced for ready references as below: - Section 5 (21): "operational debt" means a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority; 14. From the aforesaid it is evident that the Petition filed in respect of claims arising under the aforementioned Settlement Agreement [even if disputed herein] does not come within the definition of 'Operational Debt']. Time and again, the Hon'ble Apex Court in a catena of Judgments held that the IBC is not a 'recovery mechanism'. Even if the Settlement Agreement is taken into consideration, this 'Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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