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TMI Blog2020 (9) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... to filing of the instant application are as under: i. The Operational Creditor is a consultant cum investor with the Corporate Debtor and also provided advisory services on various matters of Business promotions, Marketing, Store Layouts, General Working etc. ii. The Corporate Debtor approached the Operational Creditor asking for investment and consultancy services pertaining to setting up a brand new retail outlet at GF-28, 29 & 30, Eros Market Place Mall, Shakti Khand II, Indirapuram, U.P. Accordingly, the Operational Creditor invested some amount and also supplied the consultancy services including efforts for overall planning, etc. in setting up a new retail outlet of the Corporate Debtor at GF-28, 29 & 30, Eros Market Place Mall, Shakti Khand II, Indirapuram, U.P. iii. Hereinafter, the Operational Creditor and the Corporate Debtor entered into an Agreement dated 28.11.2014 that was further ratified vide an Account Settlement Agreement dated 15.06.2018. iv. As per Clause 2 of the Account Settlement Agreement dated 15.06.2018, the Corporate Debtor agreed to pay the remaining commission to be cleared amounting to the tune of Rs. 33,94,000/- vide Post Dated Cheques (herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of the Operational Creditor and against the Corporate Debtor to pay the above-mentioned amount on the April, 2018 when the operational debt became due and payable. Further, the cause of action arose in February, 2019 when the cheques bearing no. 001711, 001712 and 001713 dated 15.02.2019, 15.03.2019 & 15.04.2019 respectively were dishonoured. The cause of action is a continuing one and subsists as long as the debt amount payable by the Corporate Debtor to the Operational Creditor is not paid. xi. In light of the foregoing facts and circumstances, the Operational Creditor, therefore, hereby prays that the insolvency proceedings may be initiated against the Corporate Debtor under the provisions of the IBC, 2016 in light of failure on part of the Corporate Debtor in light of failure on part of the Corporate Debtor to make payment of the operational debt to the tune of Rs. 54,94,874/- as elucidated in the working sheet. 4. On receipt of summons, Corporate Debtor appeared and filed reply in response to the demand notice stating that he has not enclosed the required documents and in the absence of that he denied any liability. The facts of the reply are that the Corporate D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the existence of personal debt. 5. The facts mentioned in the rejoinder filed on behalf of the Operational Creditor is that the Corporate Debtor in para 14 of the reply admits that the settlement agreement dated 15.06.2018 were executed by Mr. Abhishek and also find that the same agreement was not binding on the parties. The agreement clearly establishes that an amount of Rs. 33,94,000/- (Rupees Thirty Three Lakhs Ninety Four Thousand Only) is remaining to be cleared and the amount is payable in 66 months pursuant to Clause 3 of the said agreement. Further, the Police Complaint filed by the Corporate Debtor on 12.07.2019, is an afterthought in order to create a false record. Further, Mr. Manchanda has presented his resignation as director of Corporate Debtor company vide letter dated 15.06.2018, the date on which the account was settled and the said resignation letter was accepted by the Corporate Debtor on 16.06.2018 signed by the Director Mr. Abhishek Kumar. Further, the Corporate Debtor made following payments after the date of the settlement agreement dated 15.06.2018 i.e., Rs. 1,00,000/- on 15.12.2018, Rs. 1,00,000/- on 29.12.2018 and Rs. 50,000/- on 02.01.2019 towards GST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettlement in pursuance of which the payment was being made and received by the Operational Creditor but the Operational Creditor has not disclosed that settlement dated 19.12.2017 which was alleged to have been said on prior of to 15.06.2018. He further submitted that in pursuance of the said agreement dated 19.12.2017, a cheque of Rs. 21,66,511 was given to the Operational Creditor for full and final settlement of his claims and the agreement dated 28.11.2014 came to an end. He further submitted that the Corporate Debtor has raised an objection on existence of dispute in reply to the demand notice dated 25.05.2019 and the Operational Creditor was directed to serve all the documents to the Corporate Debtor which were attached with and relied on in the demand notice, however, the Operational Creditor never served the documents on the Corporate Debtor. He further submitted that the Corporate Debtor denied the alleged settlement agreement. He also raised all the facts mentioned in the reply. He further submitted that the Corporate Debtor is an insolvent company and its assets are more than its liabilities and has an adequate cash flow and insolvency can be initiated against Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor, existence of a dispute, if any or repayment of unpaid operational debt" therefore, we are of the considered view that the CD has failed to raise the dispute within the time prescribed under Section 8(2) of the IBC, therefore, we find, force in the contention raised on behalf of the OC that the CD has not raised the dispute under Section 8(2) of the IBC within the time prescribed under law. 10. Now, coming to the next question as we have already considered in the aforementioned para that the claim of the applicant is based not on the basis of the agreement dated 28.11.2014 by which the OC has raised the invoices rather the claim is based upon the account settlement agreement dated 15.06.2018 and on the basis of that, Ld. Counsel for the OC submitted that there is a violation of terms and conditions of the settlement agreement dated 15.06.2018 and so there is default in the payment of amount and for that the applicant has filed the present application for initiation of CIRP for default in payment of OC, therefore, we would like to consider whether the term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter of M/ s Delhi Control Devices (P) Limited Vs. M/ s Fedders Electric and Engineering Ltd." decided on 14.05.2019, in which the NCLT Allahabad bench held that "unpaid instalment as per the settlement agreement cannot be treated as operational debt as per Section 5(21) of IBC. The failure or Breach of settlement agreement can't be a ground to trigger CIRP against Corporate Debtor under the provision of IBC 2016 and remedy may lie elsewhere not necessarily before the Adjudicating Authority" and similar view is followed by this Bench in IB No. 507/ND/2020 IN THE MATTER OF NITIN GUPTA and also in Company Petition (IB) No. 2817/ND/2019 In the matter of Trafigura India Private Limited Versus TDT Copper Limited 14. In the light of that decisions and provisions which we have referred in the aforementioned para, when we shall consider the case in hand then we are of the considered view that the case of the applicant is covered with the aforesaid decisions, therefore, we are of the considered view that default of instalment of settlement agreement does not come within the definition of operational debt, hence, we are not inclined to admit the application rather we are of the view t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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