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TMI Blog2022 (1) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... m under section 10A set in. On a bare reading of the provision of section 7(5) clauses (a) and (b) it is amply clear that the Adjudicating Authority has two courses of action available to it. The Adjudicating Authority must either admit the application under section 7(5)(a) or it must reject the application under section 7(5)(b) of IBC, 2016. Whereas, in the present case in hand the settlement agreement agreed between the parties is only a subsequent arrangement which cannot negate the occurrence of default much earlier. Therefore, the applicants' contention regarding change or rescheduling in date of default in lieu of the settlement Agreement holds no merit. Hence, the prayers by the applicant in the present application stands dismissed. Application dismissed. - I.A. No. 3177/(ND)/2021 and IB-1619/(ND)/2019 - - - Dated:- 7-1-2022 - P.S.N. Prasad, Member (J) And Rahul Bhatnagar, Member (T) For the Appellant : Ashish Kr. Bhagat and Aditya Sinha, Advocates For the Respondents : Mirza Aslam Beg and Chandni Arora, Advocates ORDER P.S.N. Prasad, Member (J) 1. This is an application filed by the Applicant 'Zapdor Engineering Private Limited' b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count whatsoever pertaining to the aforesaid contracts. (5) After compliance by the parties of the above settlement agreement all the matter shall stand amicably and finally settled and nothing shall remain payable by either party to the other party pertaining to the aforesaid contracts. Transmit reserve rights to continue claim its demand with interest, if ZEPL defaults even a single instalment. (6) That on the aforesaid terms and conditions having been complied by both the parties there shall be nothing left against either the party with respect to the aforesaid contracts. (7) The present Agreement is being signed between the parties of their own freewill and without undue influence and coercion in order to bring an end to the disputes between the parties for all intents and purposes. (8) Transmit reserves all its legal rights in case ZEPL is not meeting the obligations under this agreement and/or not making the payments accordingly. (9) This Agreement shall be subject to be construed in accordance with the laws of India and Jurisdiction of this agreement shall be at Mumbai. Both the parties have agreed for exclusive jurisdiction at Mumbai. 3. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheques were admittedly dishonored because due to the pandemic the Applicant Company was facing financial crisis. 8. The applicant submits that there is no outstanding debt as of today because the outstanding was to occur after three months of withdrawing the present case and till now the present case has not been withdrawn by the Respondent. That the Financial Creditor could at best claim the outstanding to accrue after or from 30.04.2020 i.e., from the date of the first cheque. Then if the outstanding occurs from 30.04.2020 and the financial creditor is able to establish himself as financial creditor and thereafter also establish that there was a financial debt then in that case also the Applicant Company is entitled to the benefits of the moratorium in operation by virtue of Section 10A of the Insolvency and Bankruptcy Code, 2016. The applicant further submitted that the remaining part of the agreement was to come into effect after the withdrawal of the present case and if any outstanding debt arose thereafter, then a fresh cause of action was made out for which a fresh application is to be filed. 9. The Counsel for the Respondent/Financial Creditor, filed its reply Affid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o withdraw the petition under section 138 subject to Corporate Debtor paying the 2 cheques of INR 2,00,000/- each and in furtherance of the same on 03.03.2020, the Corporate Debtor shared a revised draft proposal for settlement which was slightly modified by the Financial Creditor and revised draft shared with the Corporate Debtor on 11.03.2020. The said revised draft was accepted by the Corporate Debtor on 12.03.2020 with a commitment to provide two additional cheques of INR 2,00,000/- each on or before the next date of hearing. However, Corporate Debtor once again failed to fulfill their commitment and did not provide any cheques of INR 2,00,000/- which was the pre-condition of settlement and because of which the settlement could not be concluded and the question of withdrawal of present Petition did not arise. 10. We have gone through the Documents filed and heard the arguments at length advanced by the learned counsels for both the parties. 11. The applicant being the Corporate Debtor in the main matter prays for dismissal of the present case as infructuous and not maintainable in view of the settlement and in view of the provision of section 10A of the Insolvency and Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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