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TMI Blog2025 (2) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ashok Bhushan ] Chairperson , [ Barun Mitra ] Member ( Technical ) And [ Arun Baroka ] Member ( Technical ) For the Appellant : Mr. Gaurav Mitra, Mr. Kumarjit Banerjee, Ms. Sanchari Chakroborty, Mr. Devanshu Laling, Mr. Aadil Nausahad and Mr. Ishan Roy Chowdhury , Advocates For the Respondents : Mr. Joy Saha Sr. Advocate with Mr. Sidhartha Sharma, Mr. Arjun Asthana, Ms. Shalini Basu and Ms. Kriti Gera , Advocates JUDGMENT ( Hybrid Mode ) Per : Barun Mitra , Member ( Technical ) Present is a set of three appeals filed before us filed under Section 61 of the Insolvency and Bankruptcy Code, 2016 ("IBC" in short) which arise out of three separate impugned orders. Company Appeal No. 147 of 2020 arises out of the impugned order dated 02.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra, Ld. Counsel appearing for the Appellants in CA(AT)(Ins) No. 147 of 2020 and Shri Kumarjit Banerjee, Ld. Counsel appearing for Appellants in CA(AT)(Ins) Nos. 790 of 2021 and 299 of 2023 and Shri Joy Saha, Ld. Sr. Counsel representing Respondents in all the above appeals. 3. Shri Gaurav Mitra, Ld. Sr. Counsel for the Appellants gave a background genesis of the facts of the present case. Since all the three appeals are factually inextricably inter-related, Shri Kumarjit Banerjee, Ld. Counsel appearing for Appellants in the other two appeals also agreed with the factual overview given by Shri Gaurav Mitra and gave his own inputs also which have all been captured together. It was submitted that Pradeep Kumar Agarwal and Nutan Agarwal-Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellants in terms of MoU. On the transfer of management and control of the Corporate Debtor to the Khetan Group in 2018, the Appellants accordingly demanded repayment of the invested sums together with interest. Since the payments were not received, on 24.10.2018, the Appellants filed a Section 7 application seeking initiation of Corporate Insolvency Resolution Process ("CIRP" in short) of the Corporate Debtor. The Section 7 application was dismissed by the Adjudicating Authority on 02.12.2019. 5. Submission was pressed that the Adjudicating Authority had failed to recognise that Rs 7.26 Cr was admittedly advanced to the Corporate Debtor by the Appellants which was to be repaid with agreed rate of interest under the terms of MoU upon com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority on 04.10.2019 to revive Company Petition No. 1680 of 2020 upon failure of Memorandum of Settlement ("MoS" in short) dated 21.09.2019 has been dismissed. It was submitted that Company Appeal No. 299 of 2023 has been filed challenging the impugned order dated 13.01.2022 by which Misc Application (IB) No. 382/KB/2020 in CP(IB) No. 34/KB/2020 which had been filed by the Appellant out of the special leave granted by the Adjudicating Authority on 04.10.2019 to revive CP(IB) No. 34/KB/2020 upon failure of settlement in terms of Memorandum of Settlement dated 21.09.2019 had been dismissed. Elaborating further, it was submitted that pursuant to the MoS of 21.09.2019, arbitral proceedings had been initiated but the arbitral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Appellants have suppressed the fact that in terms of Clause 5.6 of the MoU, all the liability of the Corporate Debtor prior to 31.07.2016 was payable by the Appellants No.1 and 2. These liabilities of the Corporate Debtor being prior to the MoU were to be borne and paid by Appellants No.1 & 2. Since these transactions, basis which the Section 7 application has been filed, pertain to transactions prior to 31.07.2016 which the Respondent was not liable to discharge, hence, these transactions cannot be viewed as debt, due and payable, by the Respondent. It is further the contention of the Respondent that the Section 7 petition was instituted by Appellants who were in exclusive management and control of the Corporate Debtor during the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the challenge of the arbitral award of 15.11.2019 made by the Appellants under Section 34 of the Arbitration and Conciliation Act, 1996 was also dismissed. Though the Appellants have preferred an appeal under Section 37 of the Arbitration and Conciliation Act, 1996, there is no stay and hence operation of the existing award remains binding between the parties. 10. It was also contended that the Adjudicating Authority had rightly dismissed the Section 7 application on the grounds that there was no loan agreement between the parties and no interest payable on the purported loans. The Adjudicating Authority had also correctly held that there were no documents to substantiate the claim of the Appellants and there was no due date and defau ..... X X X X Extracts X X X X X X X X Extracts X X X X
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