9911796707
TMI Blog2022 (11) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary to dispose of this application are as follows: 2. The petitioner/operational creditor has filed a petition C.P.No.2/KOB/2021 under section 9 of IBC, 2016 to initiate CIRP against the respondent/corporate debtor for the default of Rs.7,93,49,287/- When the matter was listed, on 29.01.2021, on the first hearing date the applicant filed memo seeking permission to withdraw the petition in view of settlement dated 11.01.2021 arrived between the parties, with liberty to restore the petition in the event of default committed by the respondent. In pursuance of memo filed by the petitioner the C.P.No.2/KOB/2021 was disposed of as withdrawn with liberty to initiate appropriate proceeding before the competent authority in case the corporate d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions 7,9, and 10 The IB (Application to Adjudicating Authority) Rules,2016 Rule 8 permitting withdrawal of the application made under rules 4,6, or 7, as the case may be, on a request made by the applicant before its admission The IB Board of India (Insolvency Resolution Process for Corporate Persons) Regulations,2016 1) Sec. 12A, IBC, 2016, R/w Regulation 30A (1) (a) before the constitution of the committee, by the applicant through the IRP, and 1) Sec. 12A, IBC, 2016, R/w Regulation 30A (1) (b) after the constitution of the committee, by the applicant through the IRP or the RP, as the case may be 6. It is thus patent without any ambiguity from the aforesaid statutory provisions relating to withdrawal that the Financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ival of a disposed case Only under Order XIII, Rule 3A, the court which disposed of the suit set aside the compromise decree and restore the suit to the original position on its file. However, Rule 3A is strictly applicable only if the consent of a party to the compromise decree was obtained by fraud or misrepresentation. Thus, the petitioner is not entitled to any liberty under Order XXIII, Rule 3A, since the Settlement Deed dated 11.01.2021 is voluntarily executed between the OC and CD on mutually agreed conditions without alleging any fraud, coercion or misrepresentation. Further, the Settlement Deed is analogous to passing a money decree directing its payment by instalments as provided in Order XX, Rule 11, CPC, but even the said provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rores Twenty Lakhs Only) made under the Memorandum of Settlement." The relief granted by this Authority as follows: In the event of the settlement of the issue between the parties and the Memo filed by the counsel for the applicant for withdrawal of the Application, nothing survives for further consideration in this matter. Hence this CP(IB)/02/KOB/2021 stands disposed of as withdrawn. The applicant is at liberty to initiate appropriate proceedings before the competent authority, in case the Corporate Debtor failed to honour the commitment made by them in the settlement memo. No order as to costs. 9. In the memo the petitioner specifically prayed to grant liberty in the event of default to initiate appropriate proceedings before the NCL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relies upon the Apex court Judgment Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited (Civil Appeal No. 9405 of 2017) there it is held that pre-existing dispute means dispute exist before the receipt of demand notice and also relies upon NCLAT Order Passed in Prashant Agarwal Vs. Vikash Parasrampuria and Anr (Company Appeal (AT) (Ins) No. 690 of 2022) in this order it is held that threshold amount includes both principal debt amount as well as interest on delayed payment which clearly stipulated in the invoices itself. These two citations are deals with merits of the main petition. As observed in the beginning we restrict the discussion limited to this restoration Application, not extended to the points relating to mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was refused instead relief was granted to file fresh company petition. The appeal was allowed. Here admittedly the applicant not preferred any appeal against the refusal to grant liberty to approach NCLT, thus the order dated 29.01.2021 passed on memo become final. Thus, the facts of this appeal is distinguishable and applicable to the facts of this case. The one another Citation relies by the Applicant is NCLAT order dated 18.07.2022 passed in Pooja Finelease Limited Vs. Auto Needs (India) Private Limited (Company Appeal (AT) (Insolvency) No.103 of 2022) in this case the petitioner filed an application under Rule 11 of NCLT Rules,2016 before the Adjudicating Authority praying on the basis of settlement arrived with corporate debtor seeking ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
