2023 (9) TMI 873

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.... 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 the principal amount of Rs. 2,80,00,000/- which is admitted by the petitioner in their application. The date of default as per Form - V of the application is stated to be the date where the corporate debtor made the last payment i.e., on 07.06.2019. Further, on perusal of the documents produced it is observed that Clause 1 of the MOU dated 10.09.2005, 42 Page 6 of 6 CP (IB) No.131/BB/2021 between the Petitioner and Respondent provides that the first party agrees to pay the second party an amount equivalent to 1% of the Total Project Value in case of successfully getting the SWAN project in the following manner: 0.25% of project value after signing of this agreement, and 0.25% of project value from the 1st, 2nd and 3rd quarterly payment made by the respective Government to the corporate debtor. It is seen from the agreement, the parties si....

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....lant' submitted that the outstanding payment as agreed was Rs.2,80,00,000/-which is the principal amount as on 31.05.2014 and part payment of Rs.56,18,000/-was paid to the 'Operational Creditor' and another part payment of Rs.15,00,000/- was received on 19.10.2017 and after giving credit, together with running interest at the rate of 15% per annum an amount of Rs.7,48,72,688/- became due and payable. 5. A 'Statutory Demand Notice' dated 24.08.2018 claiming an amount of Rs.7,48,72,688/- was issued wherein it 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 fur....

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....arch 2018 and hereby tendered the Cheques of amount of Rs.4,00,00,000/- (Rupees Four Crores) 10. The very document which the 'Appellant' is relying upon establishes that the initial amount of Rs.50 lakhs was to be paid prior to 31.03.2018, and that the balance amount of Rs.4 Crores was to be paid in tranches, whereas it is not in dispute that the agreement is dated 01.11.2018 which is subsequent to the amount of Rs.50 lakhs, and to be paid on or before 31.03.2018. Therefore, this document substantiate that the 'Settlement Agreement' is anti-dated, apart from being unstamped and unregistered. 11. Be that as it may, the amount in Part IV of Form-5 mentioned as 'Default' is Rs.8,46,32,553/- as on 31.01.2021 whereas the amount in the 'Settlement Agreement' appears to have been reduced to around Rs.4 Crores. Admittedly, criminal cases were filed against the Corporate Debtor prior to the issuance of Section 8 Demand Notice' under Section 138 read with Section 141 of Negotiable Instruments Act, 1881. 12. The first MOU is dated 10.09.2005 and any amount due and payable under it is barred by limitation. The 'Settlement Agreement' dated 01.1.2018, cannot be taken into consideration ....

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....ª¤à«€ જીતસિંહ 21 આનૂ કÎLAY_oz ગીરીશચંદ્ર મણીલાલ પટેલ્થ લા. નં. એસ./બી. ૧૨૬/૧૯૮૮ નારણપુરા અમદાવાદના મંદી સહી: 19 Sall Document 2 This agreement is entered between Maulik K Shah sole proprietorship having place of business at Ahmadabad. Aged adult, occupation :business, hereinafter referred to as Operational Creditor AND United Telecoms LTD a company registered under the provisions of the companies act 1956, having its registered office situated at Bangalore, through Mr Raj Mohan Rao (Chairman/ Director / Authorised Representative) hereinafter referred to as Corporate Debtor. And Whereas both parties entered into consensus on the terms and conditions as: Now this agreement witnessed: (1) the Operational Creditor issued statutory notice for his claim amount....