TaxTMI 
TaxTMI 
2018 (8) TMI 1957
X X X X Extracts X X X X
X X X X Extracts X X X X
....pondent-company under section 9 of the Insolvency and Bankruptcy Code, 2016 (in short the "IBC") read with rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity, the IB Rules) for initiation of the corporate insolvency resolution process against the respondent-company for recovery of Rs. 20,09,60,831. 2. It is the case of the petitioner that the petitioner by its offer letter (agreement) dated February 20, 2014 had offered to assist the respondent to refinance and/or restructure the existing working capital and term loan limits of the respondent and that the petitioner is entitled to receive payments as per clause III of the agreement for the services rendered by them. As per the agreement....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... e-mail dated December 17, 2014 (annexure P13 of the application) revised the fees for all the three group companies to a sum of Rs. 12 crores from Rs. 19,21,34,000 pursuant to the request for reduction of fee and on the assurance of payment of entire revised fee by December, 2014 by the respondent. However, the respondent failed to make the payments in spite of various reminder emails (annexure P16). It is stated in the petitioner that by an e-mail dated June 17, 2015 the respondent attached a certificate stating that the petitioner assisted the respondent to complete the CDR restructuring of debt of Rs. 2917.17 crores with the lenders as per mandate dated February 20, 2014 which establishes the fact that the petitioner had completed its ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the application filed under the IBC. However, the Tribunal by an order dated January 12, 2018 recorded that the petition was treated as withdrawn and granted liberty to the petitioner to file fresh petition under the IBC. The petitioner filed the present application on the basis of the legal notice dated December 14, 2017 under section 8 of the IBC and again the respondent vide reply dated December 22, 2017 denied the claim of the petitioner stating that the amount claimed by the petitioner is not due and payable. It is submitted that the respondent wrongly asserted that the petitioner has breached the terms of the agreement and the respondent has not raised any deficiency of services or breaches of the terms of the said agreement. There....
X X X X Extracts X X X X
X X X X Extracts X X X X
....icates that the petitioner has approached the Tribunal with unclean hands. It is further submitted that in view of the notice dated December 12, 2017 the arbitral proceedings are deemed to have commenced as per section 21 of the Arbitration and Conciliation Act, 1996. Since the petitioner did not respond, the respondent has approached the hon'ble High Court, Bombay under section 11(6)(a) of the Arbitration and Conciliation Act, 1996 praying for appointment of an arbitrator on behalf of the petitioner and the said application is pending in Arbitration Application (L) No. 42 of 2018. Hence, filing of the present application is entirely misconceived and the present application ought to be dismissed in view of the existing disputes as defi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the proceedings from the first petition C. P. No. 684(IB)/CB/2017 since the first petition was treated as withdrawn with a liberty to the petitioner to file a fresh petition vide orders of the Tribunal dated January 12, 2018. The petitioner further contended that a notice for invocation of arbitral proceedings was issued by the respondent on December 12, 2017 before the first petition was withdrawn and hence the same was issued prematurely with an intention to defeat the claim of the petitioner. The petitioner also stated that the IBC proceedings initiated was prior to the arbitration notice and that there is no pre-existing dispute between the parties. On such grounds, the petitioner pressed for allowing the present petition. 5. Per c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ection 8 of the IBC was issued under the signature of an advocate. Subsequently, on December 27, 2017 the petitioner filed another memo seeking withdrawal of the earlier memo dated December 11, 2017 relying on the order passed by the hon'ble apex court on December 15, 2017 in Macquarie Bank Ltd. v. Shilpi Cable Technologies Ltd. [2018] 1 Comp Cas-OL 644 (SC) that held good a demand notice under section 8 of the IBC issued by an advocate. It is also a fact that in the meanwhile, the respondent has invoked an arbitration clause, as was made available in the agreement entered into between the parties, by its notice dated December 12, 2017 that is prior to the issuance of the fresh notice under section 8 of the IBC (i. e., December 14, 2017....