Smart Card It Solutions Ltd vs Jhp Finvest Pvt. Ltd

Smart Card IT Solutions Ltd. ....Appellant Vs. JHP Finvest Pvt. Ltd. ...Respondent For Appellant: Mr. Darpan Wadhwa, Senior Advocate with Ms. Pooja Tidke, Ms. Neelakshi, Mr. Pranav Sarthi, Advocates. For Respondent: Mr. Sunil Fernandez, Mr. Darpan Sachdeva, Mr. Prastut Dalvi, Mr. Shubham Sharma, Advocates for R1. Ms. Sudha Bhushan, Advocate for IRP

ORDER

(Through Virtual Mode)

07.02.2022: Heard Learned Counsel for the Appellant and Learned

Counsel appearing for the Respondent.

2. This Appeal has been filed against the judgment and order dated

20.01.2022 passed by the Adjudicating Authority (National Company Law

Tribunal), Mumbai Special Bench, Court-III by which Application filed by the

Respondent under Section 7 of the Insolvency and Bankruptcy Code, 2016

has been admitted. The Appellant aggrieved by the said order has come up in

this Appeal. The Respondent who is the Financial Creditor had earlier filed a

petition under Section 7 before the Adjudicating Authority being Company

Petition No. 3426 of 2019 which was disposed of on 25.11.2019 on the basis

of the consent terms dated 25.11.2019 executed between the parties. Under 2

the consent terms, the Corporate Debtor acknowledged and admitted an

amount of Rs.2,18,46,155/- as due and payable and undertook to repay the

amount. The Corporate Debtor did not honor the consent terms and the

cheques issued by the Corporate Debtor were dishonored. Thereafter, the

Financial Creditor again filed an Application C.P. No. 955/IBC/MB/2020

which has been admitted by the impugned judgment.

3. Learned Counsel for the Appellant contends that since no Application

under Section 7 was maintainable to enforce consent terms, said Application

ought not to have been admitted. He submits that no opportunity is given to

file Reply to the Appellant.

4. We have perused the judgment of the Adjudicating Authority. The

opportunity was given to the Appellant to file its Reply on 01.12.2021 and

the Appellant failed to file its Reply. Thereafter, the Adjudicating Authority

proceeded to decide the matter. The submission of the Appellant is that the

Application under Section 7 cannot be filed to enforce the consent terms also

does not deserve any acceptance. The present is a case where default is

admitted and Appellant failed to make payment. The mere fact that earlier

Application under Section 7 was withdrawn, it cannot be held that there was

no default and no due payable to the Financial Creditor by the Corporate

Debtor. Admittedly, default is admitted and dues being payable, the

application under Section 7 was fully maintainable and no error has been

committed by the Adjudicating Authority in admitting the Application.

Comp. App. (AT) (Ins.) No. 102 of 2022 3

5. We do not find any merit in this Appeal. The Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Dr. Ashok Kumar Mishra] Member (Technical)

[Dr. Alok Srivastava] Member (Technical) Anjali/nn

Comp. App. (AT) (Ins.) No. 102 of 2022