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TMI Blog2021 (7) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner exercised his rights under the Settlement Agreement and has filed the present petition - There is a debt and default of payment terms of settlement Agreement dated 28.02.2019 and all ingredients of Sec7 of I B code are thus satisfied and petition is thus admitted. The matter was listed on 9.08.2019, when the corporate debtor failed to appear and notice was issued, thereafter on 26.08.2019, the corporate debtor appeared and handed over a cheque of ₹ 1 Crore to the petitioner prove his bonafides and explore the possibilities of settlement. On 17.09.2019, the Learned Senior Counsel for the Corporate Debtor sought three weeks time to make a clear proposal and handed over a demand draft of ₹ 1 crore in lieu of the bounced cheque - The Corporate Debtor failed to file any reply. On 05.05.2021, the matter was posted for pronouncement of orders, however, in view of orders passed in application seeking extension of time for the undertaking of payment of monies, the pronouncement of orders was deferred till 05.07.2021. On 05.07.2021, the matter was adjourned to 08.07.2021, the counsels from both sides were present and it was informed that the amounts were not paid. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal, New Delhi ( Hon ble NCLAT ) to record the said settlement agreement and to set aside the CIRP proceedings vide an order of the Hon ble NCLAT dated 07 March 2019. The Corporate Debtor had expressly admitted in the Settlement agreement its liability towards a debt owed to the Financial Creditor and had agreed to assume the entire admitted liability as a loan extended by the Financial Creditor to the Corporate Debtor as on the date of the Settlement agreement. 5. The Corporate Debtor had made the statement under oath before the Hon ble NCLAT and the same was also recorded in the said order dated 07 March 2019, whereby the Corporate Debtor assured to abide by the terms of the Settlement agreement and also make good the payments as described therein. The Corporate Debtor had subsequently defaulted in repaying multiple tranches of the loan repayment as agreed in the settlement agreement. As per the said order dated 07 march 2019 passed by the Hon ble NCLAT, if the Corporate Debtor failed to abide by the terms of the Settlement agreement or failed to make good the payment of the post-dated cheques, the Financial creditor would be at a liberty to revive the CIRP proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per actuals on full and final payment. 7. The Corporate Debtor had agreed to repay the Loan Amount in the manner as outlined in Clause 1(b) of the Settlement agreement. The Corporate Debtor had issued the said post-dated cheques to the Financial Creditor for an amount equivalent to 6,25,00,000 (Indian Rupees Six Crore Twenty-Five Lakh only) to be disbursed on various dates by the Corporate Debtor and had agreed to clear the Bank Loan Account to the Central Bank of India, Turbhe Branch by 31 August 2019. For reference, the Loan Amount agreed to be paid by the Corporate Debtor along with their payment milestones, based on the settlement agreement, is set out below. For ease of reference, please see the current status of each such milestone payment in the table below: Due dates Amounts paid/ due but not paid/not due Drawn on/In favour of Status 28 February 2019 Advance of INR 75,00,000 Equitas Small Finance Bank-in favour of Satish Sadashiv Rane- Financial Creditor Paid on 02 March 2019 28 February 2019 Fees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Due on 20 July 2019 05 August 2019 INR 75,00,000 Equitas Small Finance Bank- in favour of Satish Sadashiv Rane- Financial Creditor Due on 05 August 2019 05 September 2019 INR 75,00,000 Equitas Small Finance Bank- in favour of Sujeet Satish Rane Due on 05 September 2019 05 October 2019 INR 1,00,00,000 Equitas Small Finance Bank- in favour of Sujeet Satish Rane Due on 05 October 2019 On or before 3 August 2019 All outstanding amounts under the Bank Loan Account= INR 2,25,54,018** **outstanding amounts under the Bank Loan Account is an indictive figure as provided to the Financial Creditor by the Central Bank of India, Turbhe Branch as on 25 February 2019 and the amount payable to the bank shall be crystallised as per actuals on full and final payment. Central Bank of India, Turbhe Branch Due on or before 31 August 2019 Out of the Loan Amount, the Corporate Debtor has made due payments towards the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the earliest. 10. Thereafter, the Financial Creditor deposited the cheque dated 20 May 2019 on 20 May 2019 with the bank, which was dishonoured on 21 May 2019 for the same reason of insufficient funds in the account of the Corporate Debtor. The Corporate Debtor/its representative, on 22 May 2019 responded on email stating: Dear Sir, We will send you a sum of ₹ 50,00,000/- on or before 05/06/2019. Kindly ignore our earlier email dated 25.04.2019 on this subject. We will inform you about the further schedule of payment after getting clarity of our cash -flows. Kindly do not deposit any of the cheques given to you. kindly do not pursue any legal options. Thanks Regards, . 11. In spite of providing the assured date for repayment, the Corporate Debtor continued to default in its repayment obligations and no payment was received on 05 June 2019 as well. In fact, the Corporate Debtor sent another email dated 05 June 2019 stating that the Corporate Debtor will make a payment of INR 50,00,000 (Indian Rupees Fifty Lakh only) on or before 13 June 2019 instead of the earlier date of 05 June 2019. Thereafter, the Financial Creditor deposited post-dated cheque of 05 June 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e agreement towards the Corporate Debtor s loan obligations. The Corporate Debtor has committed default of payment terms and cheques for the month of April and May were dishonored. The corporate Debtor vide letter dated 22 May, 2019 promised to pay an amount of ₹ 50,00,000/ and requested not to take any legal action. All the terms of payment were again defaulted and the cheque in June were also dishonored. Hence the petitioner exercised his rights under the Settlement Agreement and has filed the present petition. The loan Agreement was subsumed in the Settlement Agreement dated 28.02.2021 and this replaced all previous arrangements between the parties. The said settlement Agreement was taken on record in the order of Hon ble NCLAT vide its order dated 07.03.2019.There is a debt and default of payment terms of settlement Agreement dated 28.02.2019 and all ingredients of Sec7 of I B code are thus satisfied and petition is thus admitted. 15. The matter was listed on 9.08.2019, when the corporate debtor failed to appear and notice was issued, thereafter on 26.08.2019, the corporate debtor appeared and handed over a cheque of ₹ 1 Crore to the petitioner prove his b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or other in any court of law; transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor. (b) that the supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. (c) that the provisions of sub-section (1) of Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (d) that the order of moratorium shall have effect from .12.2020 till the completion of the CIRP or until this Bench approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of Corporate Debtor under section 33, as th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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