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TMI Blog2022 (8) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... very clear from the above conduct of the Applicant that the applicant is trying to take advantage of their own wrong and demanding refund only from COC by exonerating its own people from their personal liability. Therefore, the application is nothing but a collusive application filed by Applicant at the behest of Respondent Nos. 3 to 6. It is also observed that the applicant is altogether a third party who has nothing to do with the CIRP process of either of the Companies and the present Application under Section 60(5) of the Code is not legally maintainable. The argument of the learned counsel appearing for the Petitioners to the effect that arbitration clause is not a bar for filing the Application or instituting proceedings before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debtor M/s. Unimetal Castings Limited. Respondent No. 2 is the COC consisting of TJSB Sahakari Bank Limited, Reliance Assets Reconstruction Company Limited, Mahindra and Mahindra Financial Services Limited. Respondent Nos. 3 to 6 are promoters, directors of the Suspended Management of the Corporate Debtor and JDECL (M/s. Joshi Deodhar Engineering Company Ltd.). The applicant M/s. Globomet Engineering Private Limited is an investment Vehicle set up to support the revival process of UCL (M/s. Unimetal Castings Ltd.) and JDECL (M/s. Joshi Deodhar Engineering Company Ltd). The applicant is not a party to the ongoing CIRP process of UCL (M/s. Unimetal Castings Ltd.) or the then CIRP proceeding of JDECL (M/s. Joshi Deodhar Engineering Company Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Professional of UCL to run UCL as a going concern in the future with the assistance of the promoters and personnel or any other person as required to retain the value of UCL ( Going Concern MA ). 7. It is under the aforesaid circumstances that a meeting between all stakeholders of UCL and JDECL was held on 10.02.2020 and a settlement amount was offered for UCL and JDECL by Globomet. Accordingly, TJSB and other lenders of JDECL and UCL entered into a consolidated MOU dated 16.03.2020 ( 1st MOU ) with Globomet for a composite settlement of all dues and debts owed to them by UCL and JDECL, and by way of the 1st MOU, it has been agreed that (i) a Resolution Plan would be filed by Globomet before the COC of UCL where under Globomet would pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solution Professional ( 12A Application ) on the direction of the COC of JDECL under Section 12(A) of the Code seeking withdrawal of Insolvency Proceedings against JDECL, in light of the settlement. The 12A Application was accordingly, allowed by the Hon ble NCLT, Mumbai by its order dated 02.11.2020. Thus, the 1st MOU and 2nd MOU cannot be reversed qua JDECL since the 12A Application stands allowed and proceedings against JDECL stands withdrawn in light of the settlement under the 1st MOU and 2nd MOU. 11. In so far as UCL is concerned, the director of UCL had submitted a Resolution Plan to the COC of UCL on 12.09.2020 and the same was agreed to by the COC of UCL, as recorded in the minutes of the meeting of the COC dated 26.02.2021 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er persons as required, till the COC of UCL takes a decision on the Resolution Plan submitted by the Resolution Applicant. FINDINGS 1. This Bench observes that both parties have extended the time period for completion of the terms of agreement from 30.06.2020 to 30.09.2020 which proves that time is not the essence of the above MOUs. 2. This Bench further observed that the 12 A application of JDECL was allowed within the knowledge and without any objection raised by the Applicant. As rightly contended by the Respondent No.2, the withdrawal of CIRP order under Section 12A by this Tribunal of M/s Joshi Deodhar Engineering Company Ltd. cannot be legally reversed or undone by this Tribunal. 3. It is also noticed that the above ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Urja Vikas Nigam Ltd. Vs. Amit Gupta Ors. (2021) 7 SCC 209. 7. The Applicant is seeking specific performance of the above MOU through the above Application. This Tribunal has no jurisdiction as per the settled proposition of law laid down by Hon ble Supreme Court in M/s Embassy Property Developments Pvt. Ltd. Vs. State of Karnataka Ors as it is the job of Civil Court. 8. As rightly contended by the Respondent No.2/COC, there is an arbitration clause in clause 9 of the MOU dated04.07.2019 which is extracted hereinbelow: IX. GOVERNING LAW AND DISPUTE RESOLUTION This Agreement shall be governed by and construed in accordance with the laws of India. All disputes and differences of opinion arising out of or in connection ..... X X X X Extracts X X X X X X X X Extracts X X X X
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