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TMI Blog2017 (8) TMI 1537X X X X Extracts X X X X X X X X Extracts X X X X ..... n be acted upon through filing of the present petition under the I B Code before this Tribunal to initiate Corporate Insolvency Resolution Process against the respondent company because of the applicant himself in a parallel proceeding before a co-ordinate Bench of this Tribunal has very much disputed the contents of such agreement, free will and meeting of free minds before executing such deed and has already opted to revert back to his original contract i.e. service agreement dated 08.07.2010. Hence, in our view it is no longer open to him to fall back again seeking enforcement of the disputed agreement dated 15th March, 2016 for the purpose of initiation of the CIRP against the present corporate debtor as both of the parties to the present petition have made allegations, counter allegation against each other for making undue influence, coercion etc. Such issue needs to be agitated before a competent court of law and not before us under the I B Code. Further, we are constrained to observe such the approach of the applicant in this petition, it is not improper, so, even then it cannot be said as fair to make parallel approach in both courts by keeping in dark with each othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt due towards operational debts is ₹ 38 crores (as per the column 1 part 4 of the application) and the corporate debtor company is liable to make payment to the applicant for a sum of ₹ 59,20,49,559/- (Rupees Fifty-Nine Crores Twenty Lakhs Forty-Nine Thousand Five Hundred and Fifty- Nine only). In the part 5 column 6 of the present application. The petitioner has stated such that the amount due as a final settlement payment alongwith other direct and indirect taxes as per the terms of clause 2 read with schedule A as per the Final Settlement Consultancy Agreement dated 15th March, 2016, entered among the parties. 3. Thus, the applicant has now sought a prayer for triggering the insolvency process in respect of the corporate debtor company. He placed reliance on the above referred final settlement consultancy agreement dated 15th March, 2016 being a tripartite agreement entered among the parties i.e. the operational creditor with M/s Isolux Corsan India Engineering and Construction Pvt. Ltd. the original contractor and further with the present corporate debtor company. Thus, he made a claim for an amount in default for sum of ₹ 59,20,49,559/- ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Tribunal those were well within his knowledge about the pendency of similar nature of company petition no.(IB)-11(PB)/2017 before the NCLT, Chandigarh which was based on same set of facts wherein he has made similar claim in respect of providing the same consultancy services to M/s Isolux Corsan India Engineering and Construction Ltd. Such petition was filed by no other than the petitioner himself initially before the Principal Bench of the NCLT which later on transfer to the NCLT, Chandigarh and reregistered as RT NO. CP(IB) 12/CHD/HRY/2017. Thus, as per the corporate debtor company the applicant has made deliberate attempt to mislead this Bench for obtaining order in suppression and omission of material facts well within his personal knowledge. Hence, the present application is liable to be rejected with exemplary cost. The corporate debtor company in support of its contention has duly annexed a copy of company petition no. (IB)-11(PB)/2017 which has already been heard and now disposed of by the Hon'ble Chandigarh Bench of the NCLT by its order dated 08.05.2017. 7. It is also objected that the present application is liable to be dismissed for non-joinder of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant. However, neither the Corporate Debtor nor SEUPPTCL has made any payments to the Applicant under the said Final Settlement Agreement. 10. Thus, the applicant earlier made an attempt before another forum of law (e.g. NCLT Chandigarh/New Delhi) to retract from final settlement agreement dated 15 ' March, 2016 (which is a tripartite agreement) and already reverted back to its claim/amount due under the original service agreement dated 08.07.2010 for ₹ 84 Crores alongwith taxes and interest etc. Thus, he made claim for ₹ 96.60 Crores against the Isolux Corsan India Engineering and Construction Pvt. Ltd. but did not implead it as a party to the present proceedings before this Bench. As such the above stated application was filed by the applicant before the Principal Bench around on 15th January, 2017, which is evident from the supporting affidavit dated 15.01.2017 as sworn in by Sh. Himalaya Dassani but himself in contrast to the same. He further filed this present application on 27.02.2017 before this Bench seeking enforcement of the same final settlement agreement dated 15th March, 2016 which according to himself was made fraudulently as he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t application. 14. It is a matter of record that an original service agreement of the lsolux Corsan India Engineering and Construction Pvt. Ltd. made with the present applicant was entered into on 8th July, 2010 for providing some consultancy service for which the applicant/operational creditor was appointed as a consultant and in consideration of such services to be provided as per the agreed terms his consultancy fee was fixed as 2% of the total cost of the project. Such project cost was to be determined by the UPPTCL. Thus, as per the applicant, the project cost for package 1 was costed around ₹ 4,000/- crores and for package 2 it cost around ₹ 3,600 crores. Therefore, the amount of the consultancy fee was payable in two equal instalments either on 120th days of signing of the documents by the company pertaining to the project awarded to it or on the date of financial closure of the project. 15. As per the material available on the record, a subsequent tripartite agreement was entered among the signing parties by replacing the original agreement dated 8th July, 2010 and substituting with the present final settlement consultancy agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yet arrived at nor commences. Hence, the question for making such payments does not arise at all. Therefore, due to this reasons, the present petition is liable to be dismissed with an exemplary cost. 17. It is further seen that the corporate debtor company in its response to a demand notice dated 21.12.2016 as sent by Mr. Dassani strongly opposed to it and made formal reply to it on 03.01.2017 and thus seriously disputed the operational creditor's claim and contended such that the applicant has already made a claim of ₹ 84 crores from the Isolux Company and further made a simultaneous claim of ₹ 38 crores also from this corporate debtor, which is not only frivolous one and baseless but also ex facie contradictory. It is further alleged that such allegation of the applicant/operational creditor for non-receipt of the amount of ₹ 2 crores as upfront payment is contrary to clause 2.3 of the alleged settlement agreement, because the applicant/operational creditor himself acknowledged of such payment. It is further contended that the operational creditor himself in his demand notice issued to the Isolux Corsan India Engineering and Construction Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Uttar Pradesh Transmission Company Ltd. or any of DISCOM of Uttar Pradesh and/or any other power utility company. Thus, as per the corporate debtor, a trigger dale as defined in the alleged agreement dated 15.03.2017 has not arrived yet. As no payment has been received from the Uttar Pradesh Transmission Company Ltd. or any of DISCOM of Uttar Pradesh, hence, no payment is due. Therefore, such claim of the applicant and consequently the demand notice issued to the corporate debtor company is premature without any cause of action and bad in law. 20. It may be seen that the corporate debtor company raised serious dispute on the final settlement agreement dated 15.03.2017 on its legality, validity and enforceability by alleging that it was not agreed to nor entered among the parties with free will and meeting of their free minds. The corporate debtor company took further plea that the trigger date of the payment cannot commence since being a contingent condition as the company is required to make payment in monthly instalment only after it receive payment from Uttar Pradesh Transmission Company Ltd. or any of DISCOM of Uttar Pradesh and/or any other power utility company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23. It may be seen that during the course of hearing of his application filed before the Hon'ble Chandigarh Bench of NCLT, the applicant through his counsel took such stand which has been referred to by the Hon'ble NCLT, Chandigarh in (para 12) of its decision, that the petitioner agreed to the aforesaid terms, as per the agreement, a sum of ₹ 2 crores was acknowledged by him but in fact no such payment were made to him nor the respondent placed any record relating to transfer of such payment in favour of the petitioner. As the terms of such agreement have not been complied with, therefore, the petitioner has a right to fall back upon the original service agreement entered with the respondent (herein Isolux Corsan India Engineering and Construction Pvt. Ltd.) being the original contractee. 24. By going through the above stated averments/alternative pleas, it is evident that the applicant himself disowned the final settlement agreement dated 15th March, 2016 and opted to revert back to his original service agreement dated 08.07.2010 entered between him and M/s Isolux Corsan India Engineering and Construction Pvt. Ltd. Therefore, in common prudence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor can be acted upon. As there reflect no subsequent understanding among the parties, hence, no claim based on such agreement dated 08.07.2010 could be made by him as he did not fulfil his obligation expected under the agreement. Therefore, no payment can be said to be due or payable to him by the original contractee. 26. In addition to the above, the Isolux Corsan India Engineering and Construction Pvt. Ltd. made further allegation that it has to suffer seriously on account of non-performance on the part of Mr. Dassani for which he is liable to compensate the company as the project was awarded to it on its own strength and hard work for which there is no contribution nor any assistance from the applicant as agreed in the terms of the contract. 27. A perusal of the rival contention, submission made by the corporate debtor company is before the Hon'ble Chandigarh Bench in (CP NO. (IB)12/CHD/HRY/2017) as well as before this Court goes to show that it has not only opposed vehemently the present petition but seriously disputed about the validity and enforceability of both the agreements for initiation of CIRP in respect of respondent companies. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debtor company in the present petition as well as in the petition before the Hon'ble Chandigarh Bench have made allegation, counter allegation against each other raising dispute on legality, enforceability and validity of such settlement agreement dated 15th March, 2016 along with an original service agreement dated 8th July, 2010. Therefore, by taking into consideration these allegations which appears to be disputed question of fact. We feel it is not proper for this court within scope of I B Code to explore the truth behind such agreements as in our humble view such disputed facts need to be ascertained by issue involved therein can be dealt with only by a competent civil court. (In our view it is neither the aim nor object of the present I B Code that an adjudicating authority to go into enquiry of these disputed facts. Hence, we leave the issue open for a competent forum of law/civil court to deal with and decide in accordance with law). In this context we find support from a decision of the Hon'ble Punjab Haryana High Court in the matter of Dalbir Singh Alias Vir Singh v. Dalbir Singh AIR 2001 P H 216 wherein his Lordship came to examine the relevant provision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llateral proceedings. The observation of the Hon'ble Apex Court made in para 5 of the judgment which is equally relevant and applicable to the present case may be reproduced herein below:- We do not agree with the High Court that, there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence . The principle of finality of litigation cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitating to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation . 34. The Hon'ble Supreme Court in its another case in Chair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signed. Each case, therefore, is required to be considered on its own facts. 28. Further, necessitas non habet legem is an age-old maxim which means necessity knows no law. A person may sometimes have to succumb to the pressure of the other party to the bargain who is in the stronger position. 29. We may, however, hasten to add that such a case has to be made out and proved before the arbitrator for obtaining an award. 30. At this stage, the Court, however, will only be concerned with the question whether triable issues have been raised which are required to be determined by the arbitrators. 36. The appellant has in its letter dated 20.12.1990 used the term without prejudice . It has explained the situation under which the amount under the No- Demand Certificate had to be signed. The question may have to he considered from that angle. Furthermore, the question as to whether the respondent has waived its contractual right to receive the amount or is otherwise estopped from pleadings otherwise, will itself be a fact which has to be determined by the Arbitral Tribunal. 37. In Halsbury ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Tribunal has very much disputed the contents of such agreement, free will and meeting of free minds before executing such deed and has already opted to revert back to his original contract i.e. service agreement dated 08.07.2010. Hence, in our view it is no longer open to him to fall back again seeking enforcement of the disputed agreement dated 15th March, 2016 for the purpose of initiation of the CIRP against the present corporate debtor as both of the parties to the present petition have made allegations, counter allegation against each other for making undue influence, coercion etc. Therefore, in our view, such issue needs to be agitated before a competent court of law and not before us under the I B Code. Further, we are constrained to observe such the approach of the applicant in this petition, it is not improper, so, even then it cannot be said as fair to make parallel approach in both courts by keeping in dark with each other. Such action on the part of applicant is deprecated. Thus, the present application is liable to be rejected on the ground alone, even otherwise it is found maintainable before this Bench. 36. In addition to the above, the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a different view, the relevant portion of the Hon'ble NCLT, Chandigarh's decision is reproduced herein below:- The matter of by following the Hon'ble Principal Bench of NCLT decision in CA No.(IB)07/PB/2017 and CA No.(IB)08/PB/2017 titled M/s One Coast Plaster v. M/s Ambience Private Limited and M/s Shivam Construction Company v. M/s Ambience Private Limited and observed and held as such: View of the facts of that case, raising of the issue about quality of the work in the reply to the notice under section 8 of the Code was considered a notice of dispute disentitling the applicant for an order of admission and therefore, the application was rejected. Before discussing the above contention, it would be appropriate to refer to the definition of term 'dispute as defined in Section 5(6) of the Code, which reads as under: dispute includes a dispute or arbitration proceedings relating to- (a) The existence of the amount of debt; (b) The quality of goods or service; or (c) The breach of a representation or warranty; The above defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat on the basis of Final Settlement Agreement, the respondent has obligation to pay. It is further alleged that the Final Settlement Agreement is void and nonest on the ground of alleged fraud and misrepresentation. The respondent even stated in the reply that it signed the alleged Final Settlement Agreement as the petitioner exercised coercion, undue influence by threatening them to cause harm to the business of the respondent, There was exchange of communication between the parties relating to the dispute even before the Final Settlement Agreement was entered. The respondent has sent reply dated 02.03.2016 (at page 45 of the paper book) in response to the notice dated 02.02.2016 sent by the petitioner. It would be relevant to refer to para nos.5 and 6 of the said reply, which reads as under: 5. Without prejudice to the above, it is stated that pursuant to the execution of said agreement, your Client did not provide the services as agreed to our Client and failed to discharge his obligations under the agreement. It is reiterated that it was our Client management and representatives, who took upon themselves and did the entire work relating to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slature to rule out the frivolous defence. It was further contended that if the plea of fraud and coercion is raised, that is a triable issue, which need not be discussed in the summary procedure prescribed under the Code. We are, however, of the view that in view of the case set up by the petition, the petition is liable to be rejected. The petitioner himself has stated against column No.1 of the 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 agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of NCLT, Chandigarh Bench, (passed in CP No.(IB)l 1/PB/20I7 dated 08.05.2017), and by further, placing reliance on the decision of Hon'ble Supreme Court in the matter of R.N. Gosain (supra), on the doctrine of Approbate Reprobate and further, in the matter of S.P. Chengalvarya Naidu (supra) and in the matter of Chairman and MP, NTPC Ltd. (supra) and Hon'ble Punjab Haryana High Court in the matter of Dalbir Singh Alias Vir Singh (supra), further by following decision of the Principal Bench, NCLT in the matter of One Coat Plaster (supra). (2) A perusal of records of this case goes to show that the petitioner has sought to trigger CIRP proceeding against the corporate debtor company on the strength of a final settlements consultancy agreement dated 15th March, 2017 entered between him and the corporate debtor company, while in contra to this, he has pleaded in his another IB petition before the Hon'ble NCLT, Chandigarh by taking inconsistence and contradictory plea with the present application, that the corporate debtor fraudulently induce him to sign and enter into a final settlement consultancy agreement dated 15th March, 2017 which is not accept ..... X X X X Extracts X X X X X X X X Extracts X X X X
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