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TMI Blog2017 (6) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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. - CP (IB) NO. 11 (PB) OF 2017, AND RT NO. CP. (1B) 12/CHD/HRY/2017 - - - Dated:- 8-5-2017 - R.P. NAGRATH, AND MS. DEEPA KRISHAN, JJ. For The Petitioner : Pawan Sharma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that on 15.03.2016, the Corporate Debtor had fraudulently induced the applicant to enter into a Final Settlement and Consultancy Agreement dated 15.03.2016 (Final Settlement Agreement) in order to fully and finally settle their claims and dues without any intention to honour its obligations. In terms of the Final Settlement Agreement, one M/s. South East UP. Power Transmission Company Limited ( SEUPPTCL ) a subsidiary of the respondent had undertaken to pay to the applicant, an amount of ₹ 38 crores along with direct and indirect taxes as full and final settlement of the amount for the services rendered by the applicant. However, neither the respondent nor SEUPPTCL made any payment to the applicant on the basis of the Final Settlement Agreement. The copy of Final Settlement Agreement dated 15.03.2016 is at Annexure II(D). 4. The applicant is said to have issued a demand notice dated 3.1.2017 in Form 3 as required by Section 8 of the Code read with Rule 5(1)(a) of the Rules to the Corporate Debtor. The total amount claimed is ₹ 96.60 crores detailed as the amount of ₹ 84 crores towards the services and ₹ 12,60,00,000/- towards Taxes. The computation chart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dictory stand, it can be safely observed that there is a dispute so far as the respondent-corporate debtor is concerned, for which the present petition under Section 9 cannot be admitted. 9. The learned counsel for the petitioner-operational creditor vehemently contended that the case of the petitioner is covered under the definition of the terms 'claim' and 'default', as defined under the Code. Sub-section (6) of Section 3 of the Code defines the term 'claim' as meaning:- (a) a right to payment, whether or not such right is reduced to judgment, fixed, disputed, undisputed, legal, equitable, secured or unsecured; (b) right to remedy for breach of contract under any law for the time being in force, if such breach gives rise to a right to payment, whether or not such right is reduced to judgment, fixed, matured, unmatured, disputed, undisputed, secured or unsecured 10. The term 'default' is defined in Section 3 (12) of the Code, which reads as under: default means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate debtor, as the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner submitted that the present is not a case, where a dispute can be said to have been raised as no Civil Suit or Arbitration proceedings are pending. Reliance is placed upon the judgment of Mumbai Bench of National Company Law Tribunal DF Deutsche Forfait AG v. Uttam Galva Steel Ltd. [2017] 80 taxmann.com 321 (NCLT - Mum.) and it was held as under: If we read the sections 5(6), 8 and 9 together, we can visualize the consistency. When the word dispute means pendency of suit or arbitration, then dispute in existence in section 8 means suit or arbitration proceedings pending since before the receipt of notice under section 8, on this logic, the receipt of notice of dispute under section 9(5)(ii)(d) will obviously become a notice of dispute reflecting pendency of suit or arbitration proceedings in respect to the debt claim since before receipt of notice under section 8 of the code. Then next point to be seen is as to whether this understanding is advancing the purpose and object of the Code or not. A provision has been envisaged for an Operation Creditor to initiate insolvency Resolution Process. If section 8 mandate is understood by reading dispute as mere assertion and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 9 of the Code is provided in sub-section (5) thereof, which is reproduced as under: (5) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order- ( i) admit the application and communicate such decision to the operational creditor and the corporate debtor if,- (a) the application made under sub-section (2) is complete; (b) there is no repayment of the unpaid operational debt; (c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor; (d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and (e) there is no disciplinary proceeding pending against any resolution professional proposed under sub-section (4), if any. (ii) reject the application and communicate such decision to the operational creditor and the corporate debtor, if- (a) the application made under sub-section (2) is incomplete; (b) there has been repayment of the unpaid operational debt; (c) the creditor has not delivered the invoice or notice for payment to the corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achieving the financial closure and other milestone under the Project. Even when our Client sought services from your Client, when it was required, your Client failed to provide the same and at times your Client did not even respond to our Client's request. On account of your Client's defaults, lapses and non-performance, the finalization of the project got delayed causing huge financial loss to our Client. Your Client instead of admitting his lapses are defaults, is adding salt to our Client's injury by making preposterous claims against our Client. Our Client reserves its right to claim damages from your Client. 6. In as much as your Client failed to fulfil the obligations undertaken by him under the agreement, no payment can be said to be due or payable by our Client. On the contrary, our Client is suffering hugely on account of your Client's non-performance, for which your Client is liable to compensate our Client Our Client was awarded the Project on its own strength and hard work and your Client made no contribution and provided no aid or assistance as agreed to between your Client and our Client. Now when our Client is proceeding ahead with the implemen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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