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TaxTMI 
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2024 (4) TMI 1377
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....a Board Resolution dated 26 May 2023 [Page 36 of the C.P.] seeking to initiate Corporate Insolvency Resolution Process ("CIRP") against Ideal Real Estates Private Limited ("Corporate Debtor"). 4. I.A. (IB) No. 1920/KB/2023 has been filed by Ideal Real Estates Private Limited against Oarsman Credit Private Limited praying for the following reliefs: a. Stay of all further proceedings in C.P. No. 127/KB/2023 b. C.P. No. 127/KB/ of 2023 being dismissed was permanently stayed. c. Ad-interim order in terms of prayers above. d. Such further and/or other order or orders be passed, direction or directions be given as to which the Learned tribunal may deem fit and proper. 5. The Corporate Debtor was incorporated on 07 October 1988, having CIN: U70101WB1988PTC045347. It's registered office is 50 J L Nehru Road, Kolkata- 700071. Therefore, this Bench has jurisdiction to deal with this petition. C.P. (IB) No. 127/KB/2023 6. The present petition was filed on 13 June 2023 before this Adjudicating Authority on the ground that the Corporate Debtor has defaulted to make a payment of a sum of Rs. 7,38,31,923.80/- (Rupees Seven C....
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.... under the Code. 14. The Financial Creditor sent a reminder letter on 09 February 2-23 for repayment of the debt amount. Thereafter, a recall notice was issued on 03 April 2023 demanding a total sum of Rs. 7,26,51,045.93, no reply was received from the Corporate Debtor. 15. Mr. Banerji submitted that after the present Company Petition was filed, the Corporate Debtor made a payment Rs. 10,00,000/- (Rupees ten Lakh only) was made . 16. Mr. Banerji submitted that during the course of arguments, the Corporate Debtor has taken four points, which are as follows: a. Whether the claim of Financial Creditor is a financial debt? b. Whether the Company Petition is maintainable for breach of any settlement terms? c. No liberty was granted by the Adjudicating Authority for filing a fresh petition. d. CIRP cannot be initiated against the Corporate Debtor as it is a solvent real estate company. 17. In order to counter the arguments placed by the Corporate Debtor, the learned Senior Counsel led us through Part - IV of the Company Petition, and submitted that it is evident that the petition has been filed claiming the original financial debt....
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....d. [2020 SCC Online NCLAT 1202] and Trafigura India Private Limited vs TDT Copper Limited [2022 SCC Online NCLAT 3885] in support of the proposition that default under the Settlement Agreement would not trigger the CIRP against Corporate Debtor. The learned Senior Counsel submitted that both these judgments were duly considered and distinguished in in the matter of Ahluwalla Contracts (India) Limited v M/s. Jasmine Buildmart Pvt. Ltd. [C.A. (AT) (Ins.) No. 345 of 2023 & I.A. No. 1164 of 2023], passed on 01 September 2023 by the Hon'ble NCLAT, wherein, it was held at para 15 as follows: "15. We have already noticed the nature of operational debt claimed in Section 9 Application, which arose out of construction contract granted to the Operational Creditor by the Corporate Debtor. Settlement during earlier Section 9 proceeding was only mode of payment to the operational debt. The facts of the present case are clearly distinguishable. The judgment of this Tribunal in "Trafigura India Private Limited vs. TDT Copper Ltd." does not come to any aid to the Appellant." 23. Mr. Banerji submitted that the judgment of Amrit Kumar Agrawal (supra) is not applicable as the se....
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....ring Deed. Hence, the Financial Creditor has filed a fresh Company Petition. 26. Mr. Banerji submitted that this issue was also considered and decided in Priyal Kantilal (supra) at paragraph 13 which is set out hereunder: "13. It is relevant to notice that in clause 9 of the consent terms there was clear stipulation that financial creditor shall be entitled to revive the company petition, the mere fact that instead of reviving company petition, a fresh company petition has been filed under section 7 shall not be reason to reject the company petition and not to entertain the said company petition." 27. The learned Senior Counsel submitted that the Code is a complete Code in itself. No provision is embodied in the Code which prevents filing of a fresh petition and there is no bar in entertaining such a fresh petition. The question of liberty to file a fresh petition being barred does not arise. The order permitting withdrawal of the first petition on the basis of a restructuring agreement was an additional liberty. Such liberty cannot constitute a bar upon the Financial Creditor to maintain a fresh petition. 28. The Corporate Debtor having agreed to and consequently....
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....f Rs. 1 Crore) would be payable by the Corporate Debtor. In case of default Financial Creditor could initiate a fresh petition for commencement of CIRP. 35. The learned Counsel submitted that it is a settled law now that, a party cannot be allowed resile from its admission. The creditors of Corporate Debtor are required to be protected. Corporate Debtor, despite giving an undertaking to this Adjudicating Authority, has defaulted in honoring the restructuring which form part of the record and order of this Adjudicating Authority. As such, dismissal of the petition on such frivolous and technical ground as raised by the Corporate Debtor will tantamount to giving premium to the Corporate Debtor who breached the terms and has so far avoided CIRP and thus continued to threatened the creditor at large as to their rights. As such, the contention of the Corporate Debtor is completely frivolous and misconceived and the present petition should be admitted. 36. The Financial Creditor has placed the following documents on record: a. Copy of Bank Statement annexed as Annexure H to the Company Petition; b. Copy of the Deed of Settlement dated 21 January 2022 annexed as ....
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....022 is based solely on the breach of the Deed of Settlement and not on the basis of claim originating from the default occurring in repayment of sums loaned by the Financial Creditor to the Corporate Debtor. The nature and character of the financial debt has changed due to the Deed of Settlement and the Financial Creditor is seeking to recover the dues from the Deed of Settlement. 44. The learned Senior Counsel placed reliance on judgments of the Hon'ble NCLAT in Amrit Kumar Agrawal vs Tempo Appliances Pvt Ltd. [2020 SCC Online NCLAT 1202] and Trafigura India Private Limited vs TDT Copper Limited [2022 SCC Online NCLAT 3885] in support of the proposition that default under the Deed of Settlement would not trigger the CIRP against Corporate Debtor. 45. The Corporate Debtor has filed I.A. (IB) No. 1920/KB/2023 seeking dismissal of the Company Petition. The Learned Senior Counsel submitted that the Corporate Debtor has is engaged in the business of real estate development and promotions and has approximately 160 workers and employees. 46. It is submitted that the Corporate Debtor has been making profits even during Covid-19. The learned Senior Counsel submitted that the pro....
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....art of this order. 4. The undertakings given shall be treated as undertakings given to the court. CP No. 1621/2018 shall stand dismissed as withdrawn in accordance with the three settlement agreements. 5. Liberty is granted to the financial creditor to file appropriate applications for revival of the company petition at stage at which it was left of in case there is default." 51. Paragraph 5 of this order in express terms granted liberty to the Financial Creditor to file appropriate application for revival of Company Petition in case there is default. Thus, contention of Corporate Debtor is contrary to the record and is liable to be rejected. Further, as is evident from settlement deed at Clause-8 [Page 64 of the CP] extracted hereinafter;- "8. On these representations, warranties undertakings and assurances by the Borrower, the Lender has agreed to consent to withdrawal of the IBC Proceedings. However withdrawal thereof shall not be defence to any fresh proceedings being initiated by the Lender against the Borrower in case of default, nor bar the Lender from taking legal recourse, including approaching the Adjudicating Authority under the Code." ....
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.... file the petition under section 7 of the Code after the Corporate Debtor defaulted to pay its dues in terms of the settlement deed referred hereinabove. It is the stand taken on behalf of Corporate Debtor that section 7 is not a remedy since there is no disbursement of debt is legally untenable. The debt that has been has been claimed is on the amount that was disbursed as loan and not the amount in the Deed of Settlement, hence, the amount claimed falls under the definition of financial debt. 55. The Corporate Debtor in its own submissions has stated that due to the ill health of in Director, the Corporate Debtor has not adhered to the timelines of the Deed of Settlement, hence the Corporate Debtor has defaulted in payment. 56. In view of the above factual and legal position, it is clear that there is a debt and default. 57. With respect to the issue of limitation, it is seen that the Corporate Debtor has acknowledged the debt and as such the petition is within limitation period. 58. The Company Petition made by the Financial Creditor is complete in all respects as required by law. The Petition and the submissions establish that the Corporate Debtor is in default of a....