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TMI Blog2021 (4) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... s initiation of Corporate Insolvency Resolution Process (CIRP) against the Respondent Corporate Debtor alleging default in making payment of a financial debt to the tune of Rs. 7,23,98,459/- (Rupees Seven Crores Twenty Three Lakhs Ninety Eight Thousand Four Hundred Fifty Nine Only). 2. Previously this Petitioner had filed a Petition under Section 7 against the Corporate Debtor in C.P. (IB) No. 3876 of 2018 in this Tribunal claiming default in payment of a sum of Rs. 6,23,98,459.20. The parties entered into a settlement and executed consent terms on 28/02/2019. In view of the Consent Terms, this Tribunal on 04/03/2019 dismissed the said Petition as withdrawn with liberty to file fresh petition in case of breach of the consent terms. 3. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Financial Creditor. 6. The Financial Creditor shall give notice to the Corporate Debtor of depositing the PDCs, as stipulated in clause 5 herein above, by way of addressing an email to the Corporate Debtor on the following 3 (Three) email addresses - (i) [email protected]; and (ii) [email protected];and (iii) [email protected] 7. Similarly, the Corporate Debtor shall give written consent to the Financial Creditor, as stipulated in clause 5 herein above, by way of addressing an email to the Financial Creditor on the following email address - [email protected]. 8. It is hereby agreed by and between the parties that in the event the Corporate Debtor fails to make payments in the manner / wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The date of default being 31/07/2019. 5. The Counsel for the Corporate Debtor submits that as per the consent terms, the payment had to be made on or before 31/03/2020 as referred to in Para 10 thereof. Since the date of default is on 31/03/2020, they are entitled for protection under Section 10A of the Code inserted by way of Amendment w.e.f., 05.06.2020. The Petition would thus be not maintainable. 6. Section 10A of the Code reads thus: "[10A. Notwithstanding anything contained in sections 7, 9 and 10, no application for initiation of corporate insolvency resolution process of a corporate debtor shall be filed, for any default arising on or after 25th March, 2020 for a period of six months or such further period, not exceeding one yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Debtor by an E-mail dated 27/09/2019 again requested the Petitioner not to deposit the Cheque dated 30/09/2019 till further instructions. The Petitioner once again requested the Corporate Debtor to replace the cheques for the month of July and August 2019 at the earliest, else it would be constrained to deposit those Cheques before they expired. 11. The Petitioner vide E-mail dated 15/10/2019 requested the Corporate Debtor to take back the three cheques of July, August and September 2019 and to issue replacement cheques. Accordingly, the Corporate Debtor took back those cheques and replaced them with three cheques dated 17/10/2019, in favour of the Petitioner. 12. It is submitted that the Petitioner vide email dated 14/01/2020 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Inserted by the Insolvency and Bankruptcy Code (Second Amendment) Act, 2020 dated 05.06.2020 w.e.f 05.06.2020. 2. Further extended for 3 months from 25.09.2020 vide Notification No. S.O. 3265(E) dated 24.09.2020 issued by MCA. Further extended for 3 months from 25.12.2020 vide Notification No. S.O. 4638(E) dated 22.12.2020 issued by MCA. 15. In view of the above amendment and the consequential notifications issued by the Ministry of Corporate Affairs, a Petition inter alia under section 7 of the Code cannot be filed for the default occurring between 25/03/2020 and 24/03/2021. The Counsel for the Corporate Debtor submits that, the Consent Terms clearly mention that the Corporate Debtor is required to make payment of the sum agreed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Corporate Debtor to the Financial Creditor vide postdated cheques ("PDC") on the due dates mentioned hereunder". When the Corporate Debtor issued fresh cheques and they were accepted, the due date also got extended. Besides by its conduct the Petitioner accepted the extension of the due dates. The contention of the Petitioner that the fresh cheques would not extend the date of default would not be helpful. c) Even the para 10 of the Consent Terms provides that "Notwithstanding what has been stated herein above, the Corporate Debtor hereby agrees and undertakes to make payment of the said Amount, being Rs. 5,24,35,680/- (Rupees Five Crore Twenty Four Lakh Thirty Five Thousand Six Hundred and Eighty Only) to the Financial Creditor, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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