TaxTMI 
TaxTMI 
2025 (8) TMI 1480
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....instant appeal are that in the year 2017 Respondent is stated to have approached the appellant making a request to the appellant to supply it various garments and the appellant accordingly agreed. The appellant started supplying garments to the respondent and also raising purchase orders and invoices. Pursuant to the said purchase orders, the appellant sold, supplied and delivered the garments of high-quality and of the quantity as mentioned in the said purchase orders, to the respondent. 4. It is contended by appellant that he has raised several invoices from time to time on the respondent pertaining to supplies made by it. The aforesaid purchase orders and invoices were required to be cleared within 90 days, however the Respondent initially made some payments towards these invoices, but eventually started defaulting in payment obligations and as such many invoices remained unpaid. 5. It is also contended that due to the repeated defaults committed by the respondent, the appellant issued a demand notice dated 23 December 2020 under section 8 of the Insolvency and Bankruptcy Code 2016, demanding the outstanding amount of Rs. 4,14,43,560/- out of which Rs. 3,25,75,861/- is the....
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.... petition as withdrawn and consent terms were also taken on record. The respondent defaulted in the payment schedule as provided in the consent terms and aggrieved by the same the appellant issued a notice seeking payment of the balance settlement amount and further demanding compliance with consent terms wide notice dated 28th November 2022. However, despite receiving the aforementioned notice no further payment was made by the respondent and despite given multiple opportunities he refrained from making any payment and in this background the appellant was constrained to exercise its liberty to seek to restore/review the said company petition in terms of the consent terms/settlement. 10. It is also contended that appellant had filed a restoration application bearing IA No. 7 of 2023 before the adjudicating authority for restoration and revival of the aforesaid company petition and also requesting to continue the proceedings seeking initiation of corporate insolvency resolution process against the respondent however the adjudicating authority in utter disregard to the terms of the settlement dismissed the application moved by the appellant by passing the impugned order of date 21....
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.....2022. Therefore, keeping in view the specific stipulation in the settlement deed that if the respondent would commit default in making payment to the appellant under the settlement deed, he would be having a right to get the petition revived/ restored. Thus material illegality has been committed by the tribunal and the impugned order be quashed and the petition be restored/revived. 17. Learned counsel for the appellant in support of his submissions has relied on the following case Laws: - (i) Pooja Finlease Ltd. vs. Auto Needs (India) Pvt. Ltd. & Anr., 2022 SCC Online NCLAT 3883. (ii) IDBI Trusteeship Services Ltd. vs. Nirmal Lifestyle Ltd., Company Appeal (AT) (Ins) No. 117 of 2023. (iii) Himadri Foods Ltd. vs. Credit Suisse Funds AG, 2021 SCC Online NCLAT 48. 18. Perusal of the record, in the background of the submissions made by Ld. counsel for the appellant would indicate that appellant had filed an application under section 9 of the IBC for initiation of CIRP against the respondent /Corporate debtor for the alleged default of Rs. 4,14, 43,560/-. It is also evident that during the pendency of the said petition settlement arrived at between the ....
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....0 July 2022 15,00,000 5 RTGS 30 August 2022 15,00,000 6 RTGS 30 September 2022 15,00,000 7 RTGS 30 October 2022 15,00,000 8 RTGS 30 November 2022 15,00,000 9 RTGS 30 December 2022 15,00,000 10 RTGS 30 January 2023 15,00,000 11 RTGS 28 February 2023 15,00,000 12 RTGS 30 March 2023 15,00,000 13 RTGS 30 April 2023 15,00,000 14 RTGS 30 May 2023 15,00,000 15 RTGS 30 June 2023 15,00,000 16 RTGS 30 July 2023 15,00,000 17 RTGS 30 August 2023 15,00,000 18 RTGS 30 September 2023 15,00,000 19 RTGS 30 October 2023 15,00,000 20 RTGS 30 November 2023 15, 87, 725 Total 3,00,87,725 6. The Parties agree that all the payments shall be made as per the Payment Schedule set out hereinabove. 7. 5M agrees, acknowledges and confirms that the amount specified in this Agreement by way of the Payment Schedule is sufficient towards the full and final settlement of all outstanding disputes and claims of 5M against BMI, in relation to the captioned Company Petition and the tra....
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....ve proof of default in payment committed by BMI". 21. Before proceeding further, it is also fruitful to reproduce the impugned order of date 21st February 2023, Whereby the restoration application of the appellant has been dismissed and the same is reproduced as under : " Rst.A/7 of 2023- Ms. Tvishi Pant, Counsel for the Applicant is present through virtual hearing. By way of the above Rst.A/7/2023, the Applicants seeks restoration of Company Petition No. 696 of 2021 which was dismissed for default on 11.04.2022, as the matter was settled between the parties. However, perusal of the order dated 11.04.2022 reveals that no liberty was granted to the Applicant/Petitioner to get the Petition revived in the event of any violation/default committed by the Corporate Debtor in terms of settlement. Therefore, the restoration of the Petition cannot be ordered. The above IA is therefore be dismissed being devoid of merit " . Order dated 11.04.2022 whereby the company petition 696 of 2021 was dismissed as withdrawn is also reproduced as under: 1. " Mr. Shashwat Rai, Counsel for the Petitioner is present and mentions that the matter has been settled amicably between the ....
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....red opinion Ld. tribunal has committed manifest illegality in dismissing the restoration application moved by the appellant on the hyper technical ground that in the withdrawal order that such liberty has not been provided to the petitioner to revive/ restoration of the petition while it was conspicuously evident that the withdrawal order has been passed by the tribunal only on the basis of settlement entered into between the parties and the settlement deed/consent terms were also produced before adjudicating authority, which were also taken on record. 23. A coordinate Bench of this tribunal in Company Appeal No. (AT) (Insolvency) 117 of 2023, IDBI Trusteeship Services Limited Vs. Nirmal Lifestyle Limited decided on 15.05.2023 speaking through its Chairperson has highlighted the difference between a 'withdrawal simpliciter' and the 'withdrawal of the petition by bringing the settlement/ consent terms on record' and while finding the said case under the category where settlement has been brought on record and also considering that in the consent terms there is a stipulation for revival of the petition in the event of default and noticing that in that case default having been comm....