TaxTMI 
TaxTMI 
2023 (6) TMI 70
X X X X Extracts X X X X
X X X X Extracts X X X X
....itiated and Mr. Mansij Arya was appointed as Interim Resolution Professional (in short 'IRP'). 2. The facts giving rise to this Appeal are as follows: (i) Both the parties entered into Consultancy Agreement dated 20.10.2018 according to which the Respondent had to provide consultancy services to the Appellant. (ii) The Respondent had raised two invoices for amount of Rs. 2,65,500/- and Rs. 59,00,000/- dated 18.06.2019 and 16.12.2019, respectively which were paid by the Appellant after verification. (iii) The Respondent had sent a Demand Notice to the Appellant which was filed under Section 8 demanding for payment of Rs. 4,59,97,062.64/- under the Consultancy Agreement dated 11.09.2020, which is annexed as Annexure A-8 of the Appeal Paper Book. (iv) The Appellant had filed the Reply to the Demand Notice dated 14.09.2020, where it was stated that there was no mention about notice of dispute prior to issuance of the statutory Demand Notice sent by Respondent after which Rejoinder was filed by the Respondent. (v) The Respondent had filed an application dated 19.10.2020 for initiation of CIRP proceedings. (vi) Thereafter, the Resp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....alsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation." (ii) Further, the judgment passed by the Hon'ble Supreme Court in case of A.V. Papayya Sastry & Ors. Vs. Govt. of A.P. & Ors. [(2007) 4 SCC 221] has held as under: "39. The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it is has been said that a judgment, decree order obtained by fraud has to be treated as a nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every Court, superior or inferior. 40. Hence, the argument or Mr. Venugopal cannot be upheld. Even if he is right in submitting that after dismissal of SLPs, the respondent herein could not have approached the High Court for recalling its earlier order passed in April 2000 and the High Co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Appeal was preferred against the order dated 07.04.2021 which was filed by the Appellant. 8. It was further submitted by Counsel for the Respondent that an order was passed vide order dated 12.05.2021 on the application bearing IA No. 2063/2021 filed under Section 12A of the IBC, 2016 r/w Regulation 30A of CIRP Regulation 2016 and Rule 11 of the NCLT Rules 2016 which was filed by the Erstwhile IRP Mr,. Mansij Arya on behalf of the Operational Creditor subsequent to the Settlement Agreement dated 21.04.2021 entered between the Parties on its free will and upon negotiations. Counsel for the Respondent has further drawn attention in this regard to Clause 1 and Clause 10 of the Settlement Agreement, which are as herein under :- "1. That this Settlement Agreement is being executed by the Parties out of their own free will, without any force, undue pressure, influence, coercion or deceit. 10. The Parties unequivocally agree that the terms of this Settlement Agreement would supersede all the terms and conditions under all previous agreements/ documents/ correspondence exchanged between the Parties except for such terms as stated in this Settlement Agreement." 9. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
..../LOA against submitting the corporate BG by Consultant to JSPPL, immediately on Signing of Agreement/ Work Contract from the end client for the Works Awarded. - JSPPPL shall pay of a sum equivalent to 2.0 % of the Tender Contract (Works Order Value) to the Consultant on Bill to Bill basis (Pro Rata basis as and when the bills are cleared& Payments received by JSPPPL). JSPPPL shall also deduct any other advances paid as per the terms of the clause 5 of this agreement from any fee payable to the Consultant pursuant to this agreement." 15. Counsel for the Respondent further submitted that the aforesaid clause provides for milestones on which the Corporate Debtor was to make payment to the Operational Creditor. The transaction between the parties was particularly with respect to tender ref: 136/PR/JBVNL/18-19. 16. Counsel for the Appellant concluded his arguments and submitted that there is no merit in the Appeal and the Appeal is fit to be dismissed. 17. After hearing both the Parties and going through the records and submissions filed on behalf of the Respondent, Appellant did not file any Written Submissions in fact the order was passed on 04.05.2023 by th....