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TMI Blog2023 (6) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... gh ] Member ( Judicial ) And [ Naresh Salecha ] Member ( Technical ) For the Appellant : Mr. Sunil K. Jain Ms. Reeta Choudhary, Advocates For the Respondent : Present but appearance not marked JUDGMENT JUSTICE ANANT BIJAY SINGH ; 1. The instant appeal is being preferred by the Corporate Debtor i.e. JSP Projects Pvt. Ltd. being aggrieved and dissatisfied by the Impugned Order dated 07.04.2021 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench- VI) in IB- 1023/(ND)/2020, whereby an application was filed under Section 9 of the Insolvency Bankruptcy Code, 2016 (in short IBC ) with a prayer to initiate Corporate Insolvency Resolution Process (in short CIRP ), the prayer was allowed and the CIRP was initiated and Mr. Mansij Arya was appointed as Interim Resolution Professional (in short IRP ). 2. The facts giving rise to this Appeal are as follows: (i) Both the parties entered into Consultancy Agreement dated 20.10.2018 according to which the Respondent had to provide consultancy services to the Appellant. (ii) The Respondent had raised two invoices for amount of Rs. 2,65,500/- and Rs. 59,00,000/- dated 18.06.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appeal has been preferred under the following grounds :- (i) The judgment was passed by the Hon ble Supreme Court of India in case of S.P. Chengalvaraya Naidu (dead) by Lrs. Vs. Jagannath (Dead) by Lrs. Ors. reported [(1994) 1 SCC 1] has held as under :- ....One who comes to the court, must Come with clean Constrained to say that more often than not, process of the court is being hands. We are abused. Property-grabbers, tax-evaders, bank-loan-dodgers lever to and unscrupulous persons from all walks of retain other life find the court-process a convenient the illegal gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. (ii) Further, the judgment passed by the Hon'ble Supreme Court in case of A.V. Papayya Sastry Ors. Vs. Govt. of A.P. Ors. [(2007) 4 SCC 221] has held as under: 39. The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, the entire case of the Respondent is based on fraud and on fictitious documents and the Impugned Orders is fit to be set aside with the imposition of maximum penalty of Rs. 1 Crore. 7. Counsel for the Respondent during course of arguments and in their Written Affidavit submitted that vide Impugned Order dated 07.04.2021 by which CIRP of the Corporate Debtor was initiated is not in operation today and the said order was set aside. Pursuant to which, an application was filed under Section 12A of the IBC, 2016 r/w Regulation 30A of CIRP Regulation 2016 and Rule 11 of the NCLT Rules 2016. As the Appeal is barred of principles of res judicata, the Appeal was preferred against the order dated 07.04.2021 which was filed by the Appellant. 8. It was further submitted by Counsel for the Respondent that an order was passed vide order dated 12.05.2021 on the application bearing IA No. 2063/2021 filed under Section 12A of the IBC, 2016 r/w Regulation 30A of CIRP Regulation 2016 and Rule 11 of the NCLT Rules 2016 which was filed by the Erstwhile IRP Mr,. Mansij Arya on behalf of the Operational Creditor subsequent to the Settlement Agreement dated 21.04.2021 entered between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in his Written Submission submitted that payment to the Operational Creditor is due under Article- 6 of Marketing and Consultancy Fees. Counsel for the Respondent relied upon Article 6.2 of the Agreement dated 20.10.2018 which reads as under:- 6.2 The Marketing Consultancy Fees payable by JSPPPL to the CONSULTANT is based on Work Order Value as detailed in Article 6.1. The agreed payment terms for this are: - JSPPPL shall pay Rs. Fifteen Lac Only (Rs. 15 Lac) to the Consultant on receipt of the LOI/LOA. - JSPPPL shall pay Rs.l.0% of the Tender Contract (Works Order Value) to the Consultant, less Rs. 15 Lacs paid at the time of LOI/LOA against submitting the corporate BG by Consultant to JSPPL, immediately on Signing of Agreement/ Work Contract from the end client for the Works Awarded. - JSPPPL shall pay of a sum equivalent to 2.0 % of the Tender Contract (Works Order Value) to the Consultant on Bill to Bill basis (Pro Rata basis as and when the bills are cleared Payments received by JSPPPL). JSPPPL shall also deduct any other advances paid as per the terms of the clause 5 of this agreement from any fee payable to the Consultant pursuant to this agreement. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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