TaxTMI 
TaxTMI 
2022 (9) TMI 685
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....tration and Conciliation Act is concerned, as we have already stated in the afore-stated para that the role of National Company Law Tribunal is very limited, while exercising its power under Section 7, 9 and 10 of the IBC, 2016. While exercising its power under Section 9, the Adjudicating Authority is required to see only there is a default in payment of debt or any dispute has been raised by the Corporate Debtor or not, so far refer the matter to the Arbitration is concerned, it is beyond the scope of Section 9 of the IBC, 2016. Therefore, we are unable to consider the prayer of the Corporate Debtor to refer the matter before the arbitration. However, the Corporate Debtor is at liberty to move before the Proper and Competent Court. As per the submissions of Corporate Debtor, Commercial Civil Suit No. 2/2020 pending for consideration, therefore, Corporate Debtor is at liberty to raise this issue before that Court. 15. Accordingly, it is therefore, ORDERED that the application is hereby DISMISSED." 2. The facts giving rise to this Appeal are as follows: i) The Appellant is a private company incorporated under the provisions of the Companies Act, 1956 and having its registered....
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....ue date for payment to (and including) the date of receipt of such unpaid amount by the Appellant. vi) The Appellant discharged its obligations under the MSA by supplying copper cathodes to the Respondent in accordance with terms of the MSA. Invoices were raised by the Appellant for the same from time to time. However, the Respondent failed to make payment to the Appellant in accordance with the terms of the MSA. Since the amounts payable by the Respondent under the MSA in respect of the supply of copper cathodes remained unpaid for a substantial period of time, the parties entered into discussions regarding payment of amounts due and payable to the Appellant for the supply if copper cathodes. Accordingly, the parties entered into the Settlement Agreement on 20.11.2018, inter alia, extended the Terms of the MSA to 31.12.2018 and provided for the full and final settlement of the amounts due and payable by the Respondent to the Appellant for the supply of copper cathodes. vii) Further case is that under the terms of the Settlement Agreement, the Respondent has unequivocally acknowledged and admitted that an amount of Rs. 63,81,63,368/- was due and payable as on 31.12.2018 by the Re....
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....iled the Application under Section 9 of the IBC against the Respondent seeking the initiation of the CIRP in respect of the Respondent as on 24.10.2019 an amount of Rs. 59,72,40,162/- was due and payable by the Respondent to the Appellant, this amount took into account, in addition to the adjustments made earlier. After hearing the parties, the Adjudicating Authority dismissed the Application filed by the Appellant under Section 9 of the IBC. Hence this Appeal. 3. The Ld. Sr. Counsel for the Appellant during the course of argument and in his Momo of Appeal along with written submissions submitted that cause of action for the Section 9 arises on account of the Respondent's default in making payments under a MSA dated 27.01.2016 entered into between the parties for the supply of copper cathodes and further, a Settlement Agreement dated 20.11.2018 between the parties whereby the Respondent acknowledged and admitted that such sums were owed by it to the Appellant under the MSA. 4. It is further submitted that the Settlement Agreement clearly acknowledged its liability to pay an amount of INR 63.81 crores and agreed to pay the same along with 10% interest per annum compounded annually....
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....tion referred to part-IV of the Section 9 Application filed by the Appellant before the Adjudicating Authority relevant portion at page 265 of the Appeal which deals with particulars of 'operational debt' wherein total amount of debt due as on 24.10.2019 is Rs. 59,72,40,162/- and the Appellant has relied upon the terms of settlement agreement dated 20.11.2018, executed between the Corporate Debtor and the Operational Creditor and as amended by the Notice of Extension dated 30.04.2019 addressed by the Operational Creditor to the Corporate Debtor. 10. It is further submitted that the Settlement Agreement dated 20.11.2018 does not provide for payment of outstanding amounts allegedly due under the MSA but only seeks to reduce the outstanding exposure to Rs. 52.50 crores by 30.11.2018 and for execution of supply contracts for the year 2019. In fact, there is no schedule for payment of outstanding amount in the same. Further, the Respondent has not acknowledged any liabilities to pay the purported dues under the MSA by 30.04.2019 in the Settlement Agreement or email dated 09.05.2019. Therefore, clearly the Settlement Agreement is not in respect of the payment of any 'operational debt' a....
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....er that it is a debt owing and of the latter that it is a debt due. In other words, debts are of two kinds: solvendum in praesenti and solvendum in future." 15. It is further that as per Section 3(12) of the Code, a default can occur only when there is failure to pay a debt which has become now due i.e. payable in praesenti. A debt become due when it is payable unless it is interdicted by some law or has not yet become due in the sense it is payable at some future date. In this context referred para 30 of the judgment of Hon'ble Supreme Court in the case of "Innoventive Industries Ltd. vs. ICICI Bank and Anr. (2018) 1 SCC 407". Therefore, The Adjudicating Authority has rightly rejected the Application filed under Section 9 of the Code, when the debt is payable in praesenti i.e. on the date of demand notice and filing of Section 9 Application can the insolvency resolution process be triggered. 16. It is further submitted that since the Respondent had complied with the terms of the Settlement Agreement, the amounts claimed by the Appellant did not become due and payable as on 30.04.2019. Further, no request was made by the Respondent to extend the deadline under clause 5(c) and....