TaxTMI 
TaxTMI 
2024 (12) TMI 1705
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...., 2016 (in short 'Code') read with Rule 4 of the Insolvency & Bankruptcy (application to the Adjudicating Authority) Rules, 2016 against the Corporate Debtor namely, 'Ideal Real Estates Private Limited' for the resolution of an amount of Rs. 1,92,88,886/- before the National Company Law Tribunal, Kolkata Bench. 3. During the pendency of the application the parties entered into an agreement on 07.06.2022 for the settlement of their dispute in which both the parties had agreed as follows: "3. It is hereby recorded, declared and confirmed that both parties agree and accept that the Second Party shall make payment amount of Rs. 1,92,88,886.00 (Rupees One Crore Ninety Two Lakhs Eighty Eight Thousand Eight Hundred and Eighty Six Only) (hereinafter referred to as the Settlement Amount) to the First Party in 35 (Thirty Five) monthly instalments. It is also agreed between the parties that no payment other than above is due whatsoever and cannot and shall not be claimed by the First Party. 4. The First Party confirm that upon payment of the above said settlement amount the First Party shall have no claim and/or demand in any manner whatsoever in respect to the loan given....
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....ted the debt and since it was not in a position to pay the amount in lump sum, therefore, agreed to pay the same in instalments to the Financial Creditor/ Appellant who accepted the same. 5. The said settlement agreement dated 07.06.2022 was also produced before the court which was taken on record by the Tribunal and thereafter in view of the statement made that the respondent shall pay the amount of Rs. 1,92,88,886/- in instalments, the Financial Creditor having been satisfied with the said statement, believing the Corporate Debtor that he will honour his words, allowed the withdrawal of petition and as such the following order was passed: "ORDER 1. Ld. Counsel on both sides present. 2. Ld. Counsel appearing for the parties jointly submit that the total amount of Rs. 1,92,88,886/- has been agreed to be paid in instalments. Let the settlement agreement be taken on record. In view of the above statements, Ld. Counsel appearing for the Financial Creditor seeks permission to withdraw this petition. Permission is granted. C.P. is disposed of as withdrawn. 3. File be consigned to the records." 6. The case set up by the appellant is that there was defa....
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.... Auto Needs (India) Pvt. Ltd. & Anr." in Company Appeal (AT) (Ins.) No. 103 of 2022 decided on 18.07.2022 and IDBI Trausteeship Services Ltd. Vs. Nirmal Lifestyle Ltd. [2023 SCC Online NCLAT 225]. 10. On the other hand, counsel for the respondent, while vehemently opposing the present appeal, has submitted that there is no error in the impugned order which may call for any interference by this court. He has submitted that though the settlement agreement was taken on record but there was no application filed by the appellant with a prayer that in case of breach of any part of the settlement much less the payment of amount as agreed, the appellant shall be at liberty to seek revival nor any such liberty was granted by the Tribunal. In support of his submission, he has relied upon a decision of this Court in the case of "SRLK Enterprises LLP v. JALAN Transolutions (India) Ltd. in Company Appeal (AT) (Ins) No. 294 of 2021 decided on 08.04.2021. He has also relied upon a division bench Judgment of the Hon'ble Delhi High Court in the case of "Mohd. Amin v. Mohd. Iqbal [2009 SCC Online Del 861: (2009) 158 DLT 531]. 11. Counsel for the respondent has also submitted that the present a....
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....l for the parties and perused the record with their able assistance. 14. Filing of the petition by appellant under Section 7 and the disposal of the said petition by Tribunal on 08.06.2022 is not in dispute and that there is a settlement agreement between the parties dated 07.06.2022. It is also not in dispute that the appellant, but for the settlement agreement, would not have withdrawn the application filed under Section 7. It is also a fact that the settlement agreement was taken on record. It is also not in dispute that at the time when the settlement agreement was taken on record there was no objection raised by the respondent that the settlement agreement cannot be taken on record in court rather the appellant should have filed an application in this regard. The only thing missing is that the Tribunal, while taking on record the settlement agreement and recorded the statement that the parties have settled their dispute at Rs. 1,92,88,886/- and respondent has agreed to be pay did not record that the appellant can get the main case revived in case respondent do not honour its commitment in terms of settlement agreement. 15. This is not the first case before this court in ....
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....t. Ltd.' was a case where neither settlement terms were filed nor the same were brought on the record. The facts in the present case are distinguishable from the above case as Consent Terms were filed and also were taken on record by the Adjudicating Authority. When the Adjudicating Authority allowed the application filed, the Consent Terms were also taken record and the Financial Creditor was fully entitled to seek revival of the Section 7 petition in event of default of consent terms. 9. We, thus, allow this Appeal and set aside the impugned order dated 10.11.2021 and revive the Section 7 petition i.e. C.P. (IB) No. 2340 of 2019 which may be heard by the Adjudicating Authority in accordance with law." 16. Similarly, in the case of IDBI Trausteeship Services Ltd. Vs. Nirmal Lifestyle Ltd. (supra) this court had noticed that separate consent terms were executed between the parties and the said consent terms were brought on record and while allowing the appeal, this Court passed the order as follows: "17. The adjudicating Authority while rejecting the revival application as noted above observed that the settlement was arrived in between the parties outside the T....
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....412(MB)/2019 is revived before the Adjudicating Authority to proceed in accordance with law." 17. There is a another case of this Court though cited by counsel for the respondent i.e. "Desh Bhushan Jain, Erstwhile Director of Angel Promoters Pvt. Ltd. v. Abhay Kumar, IRP of Angel Promoters Pvt. Ltd. & Ors." in Company Appeal (AT) (Ins.) No.124 of 2024 decided on 20.05.2024 in which the issue was that the application under Section 7 was withdrawn on the ground of settlement between the parties and then a fresh application was filed on the basis of settlement amount agreed in the settlement agreement. The objection was raised that the application under Section 7 cannot be filed on the basis of the amount settled in the settlement agreement. In this regard, this Court has observed as under: "19. We are not at all impressed with the argument of the Appellant which has been raised with the support of the decision in the case of Raj Singh Gehlot (Supra) that the application under Section 7 cannot be filed on the basis of the settlement because the said judgment is not applicable. In the case of Raj Singh Gehlot (Supra) the petition under Section 7 was filed on the basis I of ....
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.... The amount deposited by the Appellant in this court by way of FDR is ordered to be returned to the Appellant within a period of one month from the date of passing of this order by the Registrar after due verification." 18. The argument of the respondent is that in both the cases, namely, Pooja Finlease Ltd. v. Auto Needs (India) Pvt. Ltd. & Anr. (supra) and IDBI Trausteeship Services Ltd. Vs. Nirmal Lifestyle Ltd. (supra), an application was filed before the Court to bring on record the settlement deed which is conspicuous by its absence in the present case. Therefore, the said agreement cannot be looked into. 19. In our considered opinion the argument raised is totally unwarranted because the respondent has not denied that there was no settlement between the parties. The respondent did not raise any objection before the Tribunal when the settlement was produced before the Tribunal and taken on record by the Tribunal, that it should have been brought on record through a proper application. Though this objection is raised before this court for the sake of objection otherwise there is no merit in this objection. In our considered opinion, the respondent is a dis-honest person ....