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TMI Blog2023 (9) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... id prior to 31.03.2018, and that the balance amount of Rs.4 Crores was to be paid in tranches, whereas it is not in dispute that the agreement is dated 01.11.2018 which is subsequent to the amount of Rs.50 lakhs, and to be paid on or before 31.03.2018. Therefore, this document substantiate that the Settlement Agreement is anti-dated, apart from being unstamped and unregistered. The amount in Part IV of Form-5 mentioned as Default is Rs.8,46,32,553/- as on 31.01.2021 whereas the amount in the Settlement Agreement appears to have been reduced to around Rs.4 Crores. Admittedly, criminal cases were filed against the Corporate Debtor prior to the issuance of Section 8 Demand Notice under Section 138 read with Section 141 of Negotiable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal under Section 61(1) of the Insolvency and Bankruptcy Code, 2016 [hereinafter referred to as the Code ]. By the Impugned Order , the Adjudicating Authority has dismissed the Application filed under Section 9 of the Code, observing as follows: 6. It is observed by this Tribunal that as per Part IV of Form No.5 the Amount in default mentioned was Rs. 8,46,32,553/- as on 31.01.2021 and payable along with running interest at the rate of 15% p.a on commercial rate of interest. It is discussed above that the corporate debtor has paid the amount of Rs. 2,75,58,000/- out of the principal amount of Rs. 2,80,00,000/- which is admitted by the petitioner in their application. The date of default as per Form V of the application is stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Learned Counsel for the Appellant vehemently contended that the Adjudicating Authority has failed to take into consideration that pursuant to the Settlement Agreement dated 01.11.2018, cheques were issued by the Respondent/Corporate Debtor and were dishonoured . The mere fact that cheques were given construes that there is an admission of liability by the Respondent/Corporate Debtor. It is submitted that the Operational Creditor was rendering services of Business Development for the Corporate Debtor and the amount of Rs.8,46,32,553/- was due and payable along with a running interest at the rate of 15% per annum on commercial rate of interest basis. An original Memorandum of Understanding was entered into on 10.09.2005 with res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ledger account was produced with the statutory demand notice. 6. It is submitted that on receipt of demand notice in Form No.3, the Corporate Debtor approached the Operational Creditor and submitted that on account of severe financial crises an amount of Rs.4,50,00,000/- to be accepted instead of the total default amount of Rs.7,48,72,688/- and with a view to win trust, also induced the Operational Creditor to enter into a fresh MOU and made payment of Rs.50,00,000/-by RTGS into the account of the Operational Creditor and further undertook to make the payment of Rs.4,00,00,000/- on or before 31.08.2018 and tendered cheques of different dates with respective amounts as mentioned in the MOU. 7. The Learned Counsel for the Appellant v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 9. The main issue which arises in this Appeal is whether the Adjudicating Authority was justified in dismissing the Section 9 Petition on the ground that the Settlement Agreement was anti-dated, unstamped and unregistered. At the outset, the Settlement Agreement dated 01.11.2018, for ready reference is reproduced as hereunder : It is seen from the afore noted Agreement, relied upon by the Appellant that it is dated 01.11.2018 whereas it is specified in the Agreement that the Corporate Debtor further undertakes unequivocally to make the residual Settlement amount of Rs.4,00,00,000/-(Rupees Four Crores), [after making payment of Rs.50 lakhs] on or before 31st March 2018 and hereby tendered the Cheques of amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of goods or services including employment or a debt in respect of the repayment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority; 14. From the aforesaid it is evident that the Petition filed in respect of claims arising under the aforementioned Settlement Agreement [even if disputed herein] does not come within the definition of Operational Debt ]. Time and again, the Hon ble Apex Court in a catena of Judgments held that the IBC is not a recovery mechanism . Even if the Settlement Agreement is taken into consideration, this Tribunal is of the earnest view that the claims arising under the MOU lost the character of Operational Debt and b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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