2023 (4) TMI 1430

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.... Resolution Process against M/s ADTV Communication Private Limited (formerly known as M/s AEG Infratech Private Limited) the Corporate Debtor herein. 2. It is the case of the Applicant that the Hon'ble Delhi High Court had passed an order/decree for an amount of Rs. 15,23,00,000/- in CS (OS)No. 2183/2013 in terms of settlement agreement dated 11.09.2014. 3. The Corporate Debtor paid an amount of Rs. 5,23,00,000 and the last cheque for an amount of Rs. 10,00,00,000/- was payable on 31.03.2016 as per the terms of the settlement agreement, but the said cheque was returned unpaid on 07.04.2016 by the bank. 4. The Financial Creditor filed Execution Petition No. 65/2016 before the Hon'ble High Court and the Ho....

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....cation Private Limited (formerly known as M/s AEG Infratech Private Limited) has admitted the liability of payments to the first party. 10. The Ld. Counsel further submitted that since the Corporate Debtor has failed to pay the amount due and in default and also admitted the liability, the present application under Section 7 of IBC ought to be admitted. 11. We find from the records that the Corporate Debtor has filed a reply affidavit on 20.06.2021 and also has filed written synopsis on 08.01.2022. On 11.01.3023, no one appeared on behalf of the Corporate Debtor and therefore, the Corporate Debtor was set ex-parte. 12. The Corporate Debtor in its reply affidavit has raised several objections which are summarised as follows: ....

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....Financial Creditor' has to be an emphatic 'No' as the amount claimed under the decree is an adjudicated amount and not a debt disbursed against the consideration for the time value of money and does not fall within the ambit of any of the clauses enumerated under Section 5(8) of the 'I&B Code'." 14. The Corporate Debtor has also relied upon a judgment of Hon'ble NCLAT in the case of Digamber Bhondwe vs. JM Financial Asset Reconstruction Company Limited in Company Appeal (AT) (Insolvency) No. 1397 of 2019 wherein the NCLAT has held as under: "We further reject the submission that because in Section 3(10) of I&B Code in definition of "Creditor" the "decree holder" is included it shows that decree gives....

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....the Corporate Debtor. 17. It is not in dispute that the present application under Section 7 IBC has been filed on the basis of a decree passed by Hon'ble High Court and execution proceedings have been initiated and pending before the Hon'ble High Court. 18. The decree was passed on 10.08.2015 by the Hon'ble High Court and the date of default 07.04.2016. Thus, it makes amply clear that the present application under Section 7 has been filed beyond the period of limitation and is therefore barred by limitation. 19. Further, the Hon'ble NCLAT in the case of Shri Sushil Ansal vs. Ashok Tripathi & others, Company Appeal (AT) (Insolvency) No. 452 of 2020 has clearly held that the decree-holder cannot be classified as the ....