2017 (6) TMI 836 - Tri - Insolvency and Bankruptcy

Corporate insolvency resolution process seeked by operational creditor - Insolvency and Bankruptcy Code, 2016 - maintainability of petition - petitioner having already taken recourse to the provisions of Section 9 of the Code against SEUPPTCL and filed a petition before the Allahabad Bench of NCLT? - Held that - Petition is liable to be rejected. The petitioner himself has stated against column No. I of part IV of Form 5 at serial number (d) that the Corporate Debtor had fraudulently induced the applicant to enter into a Final Settlement and Consultancy Agreement dated 15.03.2016, without having intention to honour the obligation. If the petitioner himself has raised the issue of fraud and inducement and there is also a counter defence by the respondent with regard to the fraud and coercion, it would be the fittest case to categorically hold that there is a dispute between the parties, which would disentitle the petitioner for an order of admission. It is pertinent to mention that the Final Settlement Agreement does not provide that in case SEUPPTCL fails to make the payment of ₹ 38 crores, the petitioner would be entitled to fall back upon the original agreement of the year 2010. That cannot be permissible, especially when the petitioner has already taken recourse to the proceedings under the Code against SEUPPTCL in Allahabad Bench of NCLT. Respondent has rightly referred to the term of the Final Settlement agreement dated 15.03.2016, which states that the parties now wish to enter into this Agreement by renegotiating the original sum payable to the petitioner as per clause 3 of the original agreement and have reached at an understanding to close the said service agreement to be replaced fully with this agreement. If this is the term of the Final Settlement Agreement, how could the petitioner file the insolvency resolution process against the respondent. It is stipulated that the amount agreed and understood between the parties shall be paid to the petitioner by SEUPPTCL agreeing further that the project stands completed.

Summary

Issues Involved:
1. Maintainability of the petition considering parallel proceedings.
2. Existence of a dispute regarding the debt and default.
3. Validity and implications of the Final Settlement Agreement.
4. Definition and interpretation of 'claim' and 'default' under the Insolvency and Bankruptcy Code, 2016.
5. Allegations of fraud and coercion in the Final Settlement Agreement.

Issue-wise Detailed Analysis:

1. Maintainability of the Petition Considering Parallel Proceedings:
The tribunal first examined whether the petition could be maintained, given that the petitioner had already initiated proceedings against SEUPPTCL at the Allahabad Bench of NCLT. It was highlighted that the petitioner did not dispute the filing of a petition against SEUPPTCL based on a demand notice dated 21.12.2016. The tribunal concluded that parallel proceedings on a contradictory claim are not maintainable, noting the differences in the claimed amounts and dates of default between the two proceedings.

2. Existence of a Dispute Regarding the Debt and Default:
The tribunal considered the definition of 'claim' and 'default' under the Code. The petitioner argued that non-payment of any part of the debt constitutes a default. However, the tribunal found that there was a dispute regarding the debt, as evidenced by the contradictory claims in different forums and the respondent's reply to the demand notice, which highlighted inconsistencies in the claimed amounts.

3. Validity and Implications of the Final Settlement Agreement:
The tribunal scrutinized the Final Settlement Agreement dated 15.03.2016, wherein SEUPPTCL, a subsidiary of the respondent, agreed to pay the petitioner ?38 crores in full and final settlement. The petitioner contended that no payment was made under this agreement, and thus, they were entitled to rely on the original Service Agreement. However, the tribunal noted that the Final Settlement Agreement explicitly stated that it replaced the original agreement, and there was no provision allowing the petitioner to revert to the original agreement in case of non-payment.

4. Definition and Interpretation of 'Claim' and 'Default' Under the Insolvency and Bankruptcy Code, 2016:
The tribunal referred to Section 3(6) and Section 3(12) of the Code to define 'claim' and 'default,' respectively. The petitioner argued that the terms 'claim' and 'default' should cover the non-payment of any part of the debt. However, the tribunal emphasized that the existence of a dispute, as defined in Section 5(6) of the Code, disqualifies the petition from being admitted.

5. Allegations of Fraud and Coercion in the Final Settlement Agreement:
The tribunal noted that the petitioner themselves raised allegations of fraud and inducement regarding the Final Settlement Agreement. The respondent also claimed that the agreement was signed under coercion and undue influence. The tribunal held that these allegations of fraud and coercion indicate a dispute, which precludes the admission of the petition under Section 9 of the Code.

Conclusion:
The tribunal concluded that the petition is not maintainable due to the existence of a dispute and parallel proceedings. The petition was rejected with costs of ?50,000. The tribunal emphasized that the Final Settlement Agreement replaced the original agreement and did not provide for reverting to the original agreement in case of non-payment. The presence of allegations of fraud and coercion further supported the existence of a dispute, disqualifying the petition from being admitted.

Order:
The petition was rejected with costs of ?50,000, and a copy of the order was directed to be supplied to both parties immediately.