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TMI Blog2024 (3) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... cation No. 5343 of 2023 This IA has been filed by the Appellant for condonation of 14 days delay in filing of the Appeal. Considering the submissions made on behalf of the Appellant and being satisfied with the reasons mentioned in the IA, the delay of 14 days in filing the present Appeal is hereby condoned. The I.A. No.5343 of 2023 is disposed of. Company Appeal (AT) (Insolvency) No. 1490 of 2023 This Appeal has been filed by the Operational Creditor, challenging the order dated 21.08.2023, by which order, the Adjudicating Authority allowed Application under Section 12A, permitting withdrawal of Section 9 Application being CP (IB)-17/9/JPR/2022. The Appellant is aggrieved only to the extent that Adjudicating Authority while permitting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order contends that after the settlement MoU dated 07.07.2023, only payment received from the Corporate Debtor was Rs.50 lakhs and the rest of the payment has not been paid as per settlement, which was for Rs.1,85,00,000/-. It is submitted that the Corporate Debtor has also not executed Sale Deed in favour of first party as per MoU, nor made the payment of the amount within six months with interest of 12% per annum. It is submitted that Adjudicating Authority ought not to have pass an order refusing the liberty, since the said occasion has not arisen when the order was passed on 21.08.2023 and the liberty to revive ought not have been foreclosed. It is submitted that by not honouring the MoU, the Corporate Debtor has breached the settlem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as undertaken not to pursue this matter on the basis of the settlement reached between the parties. We, thus, have to look into the MoU to find out as to what was undertaken by the Operational Creditor. In the MoU dated 07.07.2023, which is filed at Annexure A-3, after noticing few facts, the parties under the MoU entered into following terms and conditions: "NOW THE MOU WITNESSETH AS UNDER: 1. That the Second Party has agreed to pay a total amount of Rs.1,85,00,000/- (Rupees One Crores Eighty Five Lakhs only) to the First Party towards full and final settlement of all its claims towards it. Against the claimed amount following payments have been made by the Second Party: a) Rs.25,00,000/- (Rs.Twenty-Five Lakhs Only) on 30.06.2023 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Corporate Debtor Company Petition bearing No.17/JPR/2022. 3. That the Second Party shall bear the fee and expenses or any other incidental expenses of the Interim Resolution Professional as decided by the Hon'ble National Company Law Tribunal, Jaipur. 4. Each party thereto represents and warrants that the person executing this MoU on its behalf has express authority to do so, and in so doing, binds the parties hereto. 5. That the present Memorandum of Understanding is confidential and binding on all the parties as both the parties agrees that none of them terminate or deviate from any of the terms of this MoU. 6. No variation or modification of this MoU shall be effective unless in writing and signed by on or behalf of each o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ean that the Operational Creditor has relinquished its right to make any further application before the Adjudicating Authority in event any default is committed by the Corporate Debtor. The MoU to the contrary contained a condition that MoU is confidential and binding on the parties and none of them terminate or deviate from any of the terms of the MoU. Clause-5 of the MoU, which we have already extracted above, indicates that Corporate Debtor also bind itself with the terms and conditions of the MoU. The Adjudicating Authority having declined to grant any liberty, the Appellant aggrieved by the said direction, has come up in this Appeal. We are of the view that there was no occasion for declining any further liberty to the Operational Cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of OTS, has allowed the Appeal and modified the order of Adjudicating Authority while granting the liberty to revive the CIRP. 12. In the MoU, between the parties, neither there was any specific prayer made for revival of the CIRP, nor there was any statement that Operational Creditor has relinquished its right to revive the CIRP. The learned Counsel for the Respondent has relied on judgment of this Tribunal in Amrit Kumar Agrawal vs. Tempo Appliances Pvt. Ltd. - (2020) SCC OnLine NCLAT 1202. In the said case, Section 7 Application was dismissed on the ground of default in payment of Settlement Agreement holding that the debt does not come under the definition of financial debt. In the above case, MoU was entered on 22.09.2017 betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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