Barun Mitra ORDER
1. Heard Learned Counsel for the parties.
2. This Appeal has been filed against the Order dated 10.10.2022 by which order, the Adjudicating Authority has admitted Section 7 Application filed by the Financial Creditor under I&B Code, 2016.
3. An application under Section 7 was filed by the Financial Creditor-Debenture Holder on 20th December, 2019 being CP No. 45/IBC/NCLT/MB/MAH/2020. In the said Company Petition, a consent terms was entered between the parties with other stakeholders. According to the consent terms, the Financial Creditor-Respondent herein agreed to withdraw the Company Petition. It was further contemplated in the consent terms that in event, there is default of the terms of present consent terms on the part of the corporate debtor in addition to the consequence provided in Clause 8(B)(a)(iv), the Financial Creditor shall be entitled to claim the entire amount outstanding and revive Company Petition 45/2020.
4. Subsequently, it appears that consent terms was defaulted, the cheques which were issued by the Corporate Debtor were dishonored. The Financial Creditor instead of reviving earlier company petition, filed a fresh company petition CP (IB) No. 1029 of 2021. In the company petition, the Financial Creditor has based his claim on the basis of the initial financial debt as was claimed in the original application and in the application has also given the details of the consent terms and the subsequent event which took place. The said company petition has now been admitted by the Impugned Order passed the Adjudicating Authority.
5. Aggrieved by the said order, this Appeal has been filed.
6. Mr. Abhijeet Sinha, Learned Counsel for the Appellant challenging the Order impugned submits that there being breach of the consent terms, Section 7 application filed by the Financial Creditor was not maintainable since breach of consent terms does not furnish any right to initiate Section 7 Application, since breach of consent terms can not be treated to be financial debt. It is further submitted that Adjudicating Authority committed error in admitting Section 7 Application. Mr. Sinha has relied on two judgments of this Tribunal in support of his submission that are Judgment in Amrit Kumar Agrawal Vs. Tempo Appliances Pvt. Ltd. [MANU/NL/0442/2020] decided on 25.11.2020 as well as Judgment in Dr. Gopal Krishnan Ms. & Anr. Vs. Mr. Ravindra Beleyur & Anr. [CA(AT)(CH)(INS) No. 316 of 2022]. It is further submitted that there is no consensus for initiating Section 7 Application amongst the Debenture Holders and Respon........