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TMI Blog2020 (12) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of the undertaking already given on behalf of the respondents that they would withdraw the appeal arising out of the special leave petition being Special Leave Petition (Civil) No.11740-11742 of 2009 pending before the Supreme Court preferred from the judgment and order of the Division Bench dated March 16, 2009 as recorded in the said impugned order dated February 18, 2020 and Mr. Bachawat the Learned Senior Counsel appearing for the respondents has further confirmed such undertaking before this Court and the present appeal is being disposed of subject to such undertaking. 3. The first appellant is successor-in-interest of an insolvent company, the second appellant, whose assets in effect been purchased by the first appellant in an insolvency proceeding. The respondents lent and advanced money to the second appellant from time to time. The agreement between the parties envisaged the loan to carry interest @ of 28% per annum with quarterly rests. The agreement further provided that in lieu of the money due being paid to the respondents, the second appellant being the debtor company would hand over certain constructed flats at 30, Shakespeare Sarani, Kolkata-700017 (herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 of 2007. 9. In the execution proceeding the second appellant being the award-debtor filed an application praying for a direction to deposit a sum of Rs. 13,38,31,477.30/- and for recording of satisfaction of the said award with other consequential reliefs. In the said application an order was passed by the executing Court dated September 13, 2007, when the second appellant being the award/judgment-debtor was permitted to deposit a sum of Rs. 13,38,31,477.30/- with the Registrar, Original Side, who then was directed to invest the said sum in a short term fixed deposit with the State Bank of India, main branch, Kolkata and to keep it renewed until further order. 10. By a judgment and order dated July 11, 2008 the Executing Court was pleased to disposed of the execution proceedings inter alia directing the second appellant to convey the said property in favour of the respondents or their nominee or nominees. The said judgment and order dated July 11, 2008 was subsequently set aside by the judgment and order dated March 16, 2009 passed by the Appellate Court. Thus, the claim of the respondents award-holders was found to have crystallised in the money deposited in the execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the Registrar, Original Side pursuant to the direction made by the executing Court towards the satisfaction of the claim of the respondents under the said award. However, in view of the intervening resolution process initiated by the creditors against the second appellant under the IBC and the resolution plan being approved without any claim being submitted by the respondents under the provisions of the IBC, the respondents are not entitled to claim any right over and above the said awarded dues which was deposited with the Registrar, Original Side by the second appellant. The provisions of IBC has a prevailing effect over the said awarded/decretal claim of the respondents, no direction could be made to hand over the said sum to the respondents. Thus, the order under the appeal is illegal, bad in law and is not sustainable and should be set aside. 15. Mr. Mookherjee referred to the various provisions from the Bankruptcy Code in support of his above contention. He referred to the definition of "claim" as defined under IBC and submitted that a claim is a right of payment, whether or not such right is reduced to judgment, secured or unsecured. The said definition also in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ward under the provisions of Order XXI of the Code of Civil Procedure, 1908. 17. Mr. Mookherjee, then submitted that the respondents did not accept the said judgment of the appellate court dated March 16, 2009 and preferred the special leave petition in which leave had been granted by the Supreme Court and the appeal is still pending. According to him, this clearly shows the intention of the respondents that at the relevant point of time they were not ready and willing to accept or receive the awarded sum. Therefore, the respondents subsequent to the approval of the resolution plan under the Bankruptcy Code relating to the second appellant, could not and cannot enforce its claim under the said award against the second appellant once they had failed to lodge their claim in the insolvency proceeding. 18. Mr. Mookherjee then placed reliance on the dictum of the Supreme Court in the matter of Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta reported at (2019) SCC Online SC 1478, emphasising on paragraph 88, he submitted that a successful resolution applicant cannot suddenly be faced with undecided claims after the resolution plan submitted by him has been acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plan being approved by the NCLT does not and cannot arise and on this factual matrix the judgment in the matter of: Essar Steel (supra) is clearly distinguishable. Therefore, the ratio of the said dictum will not apply in the facts of the present case. 22. In view of the above, the issue arose for consideration in this appeal is that whether an awarded claim deposited by the award-debtor with the executing court can be realised and received by the award-holder to the satisfaction of the award, when the said awarded claim was not a part of the resolution process of the award-debtor, after the resolution plan is approved by the relevant adjudicating authority under the provisions of the said IBC. 23. It is an admitted position that pursuant to the award made in December 2007 by the Arbitral Tribunal which is a deemed decree within the meaning of the Arbitration and Conciliation Act, 1996 remained unsatisfied at the end of the second appellant, who is the award-debtor. The respondents award-holders were compelled to apply for execution of the same and initiated the execution proceeding before the executing court in terms of Order XXI of the Civil Procedure Code against the second ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A decretal debt is paid into court and not deposited, so to say. Upon the decretal debt being tendered in court, the decretal interest stops running. It is for the court to invest the money and what accrues on the investment is for the benefit of the decree-holder. It is the executing court through its registrar had held the awarded sum in its custody as a trustee for and on behalf of the respondents who are the beneficiaries of the said sum under the award. The mere release of the awarded sum in favour of the respondents award-holders by encashing the fixed deposits is nothing but a ministerial act. The moment the second appellant had deposited the awarded sum with the executing court in terms of Order XXI, Rule 1, sub-rule (1)(a) of the Civil Procedure Code the right on the said amount under a crystallised award or decree had passed in favour of its beneficiary, namely, the respondents herein. The deposit was made by the award-debtor second appellant in 2007 whereas the Bankruptcy Code was promulgated as late as in 2016. It is, therefore, cannot be contended that in view of the operation and intervention of the Bankruptcy Code relating to the second appellant, the respondents a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons under any other law including the subject execution proceeding in this case is concerned, the same has no merit, as way back in 2007 when the second appellant deposited the awarded sum payable to the respondents award-holders under a crystallised award with the executing court had discharged its obligation under said crystallised award. Such discharge of obligation on the part of the second appellant under the said crystallised award took place way back in 2007 which is much prior in point of time than the Bankruptcy Code was even promulgated far to speak of approval of the resolution plan relating to the second appellant by the relevant adjudicating authority under the Bankruptcy Code. The right in respect of the said awarded sum had already passed in favour of the respondents award-holders under the way back in 2007. As such there was no requirement on the part of the respondents to lodge its claim in the resolution process of the second appellant under the provisions of the Bankruptcy Code to the extent of the sum already deposited by the second appellant with the executing court under the award with whatever accretion thereupon. 31. The ratio decided by the Supreme Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he award-holders did not ultimately receive the same, the award-debtor would still have no right to obtain refund thereof. It is for such reason that the judgments cited are of no avail to the appellants herein. The judgment and order impugned does not call for any interference. 34. In view of the foregoing discussion, this court is of the considered opinion that the appeal preferred by the appellants is not maintainable, and devoid of any merit and as such the same is dismissed with costs assessed at Rs. 50,000/-. 35. The Registrar, Original Side is further directed to carry out the directions of the executing Court made in its order dated February 18, 2020 which was subsequently corrected by an order dated February 24, 2020 immediately upon the communication being received in writing from the respondent's advocate on record that the appeal arising from the said SLP has been withdrawn in terms of their undertaking given to both the executing court as well as this court. 36. It is further made clear until appeal arising from the said SLP is not withdrawn by the respondents and the same is properly communicated with the Registrar, Original Side, none of the orders namely the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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