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TMI Blog2018 (4) TMI 1851X X X X Extracts X X X X X X X X Extracts X X X X ..... o by saying that the arbitration proceedings pending before the hon'ble High Court would be treated as withdrawn in view of the consent terms arrived between the parties. For these consent terms have been entered into comprehensively dealing not only with the payments in relation to berth Nos. 1 and 2 at Dighi but also in respect to berth No. 3 at Agardanda, Maharashtra, a clause has been inserted that the arbitration application filed by the petitioner in respect to berth No. 3 would be treated as withdrawn by saying that arbitration proceedings stood as withdrawn in view of the consent terms arrived between the parties in respect to berth No. 3 as well. It is vividly clear that whatever disputes either in relation to the services given by the petitioner or in relation to any of the arbitration proceedings, it has to be understood that the parties arrived into an understanding that whatever disputes were there before entering into consent terms in respect to berth No. 3 would also be merged (doctrine of merger) as part of the consent terms, today the corporate debtor counsel could not say that there is a pre-existing dispute in respect to berth No. 3, therefore, this claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the construction of multi-purpose berths Nos. 1 and 2 at Dighi, Maharashtra under the contract dated November 1, 2008 by which the corporate debtor fell due to pay ₹ 4,56,18,410 for the works executed, ₹ 8,91,49,870 to be refunded as retained by the corporate debtor, ₹ 8,04,98,911 to be reimbursed for VAT paid by the petitioner on behalf of the Dighi Port Ltd., for each of the amounts fell due on different dates, the petitioner filed earlier Company Petition No. 39 of 2017 on the file of this Bench seeking recovery of ₹ 22,41,37,054 plus interest at 24 per cent. per annum, on which since the parties having entered into consent terms dated March 29, 2017 executed between this petitioner and the corporate debtor, they having filed an application withdrawal of the company petition along with the consent terms arrived between the parties, the same has been dismissed as withdrawn. But thereafter, though this corporate debtor entered into consent terms to repay the money as stipulated and as agreed in the consent terms dated March 29, 2017 the petitioner filed this company petition basing on the consent terms arrived at between the parties on March 29, 2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gineering and Construction Co. Ltd. (IECCL)/IL and FS Maritime Infra structure Co. Ltd. (IMICL) to corroborate from their books of account, to determine whether or not a sum of ₹ 3,25,00,000 has in fact been paid/reimbursed by IECCL/IMICL to the petitioner towards the cost of material for berth No. 4 at Agardanda, Maharashtra. If the said sum of ₹ 3,25,00,000 was in fact has been paid or reimbursed, by IECCL/IMICL to the petitioner, then proof of such payment shall be submitted by the corporate debtor to the petitioner and the petitioner shall make no claim against the corporate debtor for the said amount. If the petitioner has not been paid by IECCL/IMICL, then the corporate debtor agrees to pay the petitioner on or before June 30, 2017 the said amount of ₹ 3,25,00,000 along with and in addition to any other sum that may be due and payable in terms of clause 1(a)/1(b) as applicable. 4. This payment or discharge of agreed settlement amount by the corporate debtor to the petitioner shall be the consideration for full and final settlement of all disputes, differences and claims between both the parties in relation to the work done by the petitioner, the agreed se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no certification to the effect by the engineers in terms of the contract and huge amount of expenses was incurred by the corporate debtor by making direct payment to the sub-contractors of the petitioner which itself shows the existence of dispute between the petitioner and the corporate debtor. 8. Counsel of the corporate debtor says that one of the shareholders of the petitioner having 36 per cent. shares in the petitioner raised an objection by way of the letter dated March 24, 2017 to the applicant with a copy marked to the corporate debtor, in view thereof, counsel says that the petitioner- company is not competent to enter into consent terms with the corporate debtor whereby the consent terms itself has to be declared as null and void. Counsel says since the petitioner has entered into consent terms without authority, it has to be treated as the petitioner played fraud against this court in dismissing the earlier petition looking at the consent terms arrived between the parties. He has gone ahead saying that consent terms dated March 29, 2017 pursuant to which the earlier company petition came to be withdrawn is an agreement only between the parties to the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Bench or not ? And whether the petitioner, qua this case, withdrawing arbitration proceedings subsequent to issuing of notice will amount to existence of dispute prior to giving section 8 notice or not ? 12. It is a fact that this petitioner filed a company petition stating that it has rendered services to the corporate debtor for the construction of multi-purpose berth Nos. 1 and 2 at Dighi, Maharashtra, under the contract dated November 1, 2008. On having the services rendered and the corporate debtor having not paid, when the petitioner's side ready to argue the case, the corporate debtor entered into consent terms with the petitioner on March 29, 2017 agreeing as mentioned before by stating that the petitioner is entitled to file fresh company petition under the IB Code in the event payment has not been made as mentioned in the consent terms and also by saying that the arbitration proceedings pending before the hon'ble High Court would be treated as withdrawn in view of the consent terms arrived between the parties. For these consent terms have been entered into comprehensively dealing not only with the payments in relation to berth Nos. 1 and 2 at Dighi but also i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor or in filing this company petition before this Bench. Moreover, we don't believe that the petitioner has no authority because no objection come from any corner stating that the petitioner has no authority to file this company petition basing on the consent terms arrived between the party, therefore, we have not found any merit in the argument saying that the petitioner has no authority to file this company petition. 16. Merely because consent terms arrived between the parties will never change the nature of the claim, here the claim is the petitioner rendered services to which money was not paid, upon which company petition was filed since the corporate debtor entered into consent terms putting the petitioner under belief that he would pay money to the petitioner as agreed in the consent terms, the petitioner withdrew the company petition believing that the corporate debtor would make payment as agreed in the consent terms. But on the contrary, instead of making payment, the corporate debtor has now taken a U-turn stating that it may not pay any money to the petitioner for having the corporate debtor already terminated the consent terms as well as the agreement dated No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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