9911796707
TMI Blog2022 (7) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... Operational Creditor) and Shrishti Infrastructure Development Corporation Limited (hereinafter known as the Corporate Debtor), seeking the following reliefs: a. Impleadment of the Applicant to the Company Petition No. (IB)/2(KB) 2021; and b. Dismissal with costs of the Company Petition No. (IB)/2(KB) 2021; and c. Imposing of cost on the Operational Creditor and Corporate Debtor for maliciously filing the Company Petition No. (IB)/2(KB) 2021 for the purposes other than the resolution of the Corporate Debtor; and d. In the event of admissions of the Company Petition No. (IB)/2(KB) 2021, the passing of a direction that the Applicant may be treated fairly in the resolution plan of the Corporate Debtor. e. Stay of Company Petition No. (IB)/2(KB) 2021 pending the hearing of this Application 3. Submissions on Behalf of the Applicant: 3.1. The case of the Applicant is that the Applicant has crystallized rights against the Corporate Debtor under two Arbitral Awards dated 30.04.2019 and 12.07.2020 as passed by the arbitral tribunal seated in Singapore in ICC Case No. 21674/CYK/PTA/ASB/HTG. These awards are presently being enforced by the Applicant against the Corporate Debtor b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0, the arbitral tribunal passed the final award in the arbitration directing, inter alia, the Corporate Debtor to pay Rs. 16.18 Cr along with interest to the Applicant [Annexure E]. 3.6. During the pendency of OMP 5, a different Operational Creditor of SHPL, namely, Universal International Creation Limited ("UICL") filed a collusive section 9 application at the behest of the Corporate Debtor and SHPL to admit SHPL into CIRP. The aforesaid section 9 application was registered before the Tribunal as CP(IB) No. 767/ 2020. On 12.08.2020, this Tribunal admitted SHPL into CIRP. The said order dated 12.08.2020 [Annexure A]. 3.7. The Applicant herein challenged the Order dated 12.08.2020 before the Hon'ble National Company Law Appellate Tribunal, New Delhi ("NCLAT"). The Hon'ble NCLAT, vide judgment dated 27.08.2021, set aside the said order of this Tribunal and noted therein that there is a reasonable doubt of collusion between SHPL and the Operational Creditor therein. The Hon'ble NCLAT further noted that the conduct of SHPL inferred that SHPL appeared to be keen and waiting for admission and initiation of CIRP against itself. The said judgment dated 27.08.2020 [Annexure B]. 3.8. In A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to infer that the corporate debtor appeared to be itself keen and waiting for admission of Section 9 application and initiation of CIRP against itself. 33. In view of the submissions and arguments made by the Appellant and Respondents and a close perusal of documents submitted by the operational creditor and other parties lead us to the conclusion that the application u/s 9 was not submitted within limitation and it contained documents of doubtful origin which do not inspire confidence, and which formed the basis of admission order. The allegations of collusion between the Operational Creditor and the corporate debtor raise reasonable doubt. Documents filed to hold debt was due, or payable do not raise confidence. Initiation of CIRP of a company which is a going concern, on the basis of a short defence note without a proper reply/defence called from the corporate debtor, and based on such documents attached with the admission application is certainly not proper and defeats the purpose and intent of the IBC in letter and spirit. 34. In light of the discussion cited above, the Impugned Order dated 12.08.2020 is set aside..." 3.11. It is trite that under Section 65 of IBC i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liefs claimed in said petition were rejected vide order dated 23.11.2017. in the said order, the Tribunal also observed the following" " 62. It is also clear from the above that petition under sec. 241 and 242 is only dressed up a petition with a purpose to bypass the arbitration agreement..." 3.17. Further, during the arbitration proceedings, SHPL illegally removed the Applicant's nominee director from its board and subsequently refused to reinstate the director or appoint a replacement. In this regard, the Partial Award directs-the Respondents to comply with Clauses 6, 7 and 8 of the SSHA read with Schedule 3 (the rights of Applicant to nominate directors on the board of directors of SHPL, attend board and shareholder meetings, receive notices, quorum requirements, veto rights etc). Despite of the aforementioned direction, the Corporate Debtor and SHPL continue to flagrantly disregard the said directions of the Arbitral Award. Resultantly, the Applicant continues to be kept away from the business affairs of SHPL. 3.18. Further, during the pendency of the arbitration proceedings and in the financial year 2018-19, the Corporate Debtor sold the commercial component of the Westi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of whether the Applicant is a financial creditor of the Corporate Debtor or not is immaterial in the context of the instant Company Petition and intervention Petition. 4.2 The Corporate Debtor has further denied the statement of the Applicant in paragraph 30 of the instant Intervention Petition that "in view of the above findings of the Hon'ble NCLAT, the Applicant has sound reasons to apprehend that the present Company Petition is filed by the Operational Creditor against the Corporate Debtor only, to frustrate the rights of the Applicant under the arbitral awards", as alleged or at all. The Corporate Debtor submits that the Applicant has extrapolated adverse observations made against SHPL by the Hon'ble NCLAT in the judgment dated 27.08.2021 to arrive at unreasonable apprehensions regarding the conduct of the Corporate Debtor in the instant matter involving a completely different set of facts and circumstances on record. 4.3 The Applicant has done so while choosing to ignore the fact that the said judgment dated 27.08.2021 reflected in part the successful efforts of the Corporate Debtor before the NCLAT in extricating SHPL from the clutches of CIRP and not just solel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent by the Operational Creditor. 4.8 The Corporate Debtor has expressly submitted via the said Affidavit-in- -Reply that the instant Company Petition filed by the Operational Creditor is not maintainable and liable to be dismissed on account of several grounds including the fact that it is barred by limitation. 4.9 Regarding the NCLAT judgment dated 27.08.2021 relied upon by the Applicant in the instant intervention petition, it has been submitted that the Corporate Debtor itself had preferred an appeal, being C.A.(AT)(Ins.) No. 892 of 2020, before the Hon'ble National Company Law Appellate Tribunal ("NCLAT") against the admission Order dated 12.08.2020 passed by this Tribunal admitting Sarga Hotel Private Limited ("SHPL") into CIRP. The appeal preferred by the Corporate Debtor culminated in the common judgment dated 27.08.2021 allowing both the appeals filed by the Applicant and the Corporate Debtor against the said admission Order dated 12.08.2020. This is apparent from a perusal of the very judgment dated 27.08.2021 relied upon by the Applicant in the instant intervention petition. The Corporate Debtor and SHPL are separate legal entities and the Corporate Debtor has suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perused the record. 5.2 Regarding the objection of non-applicant regarding maintainability of this application and reliefs sought therein, we would like to refer to the Hon'ble NCLAT's decision in the matter of SREI Infrastructure Finance Ltd v. Right Tower Pvt. Ltd[2018 SCC Online NCLAT 58], wherein, while upholding the right of any person to intervene, the following was held: "4. It is submitted that if any person initiates the Insolvency Resolution Process fraudulently or with malicious intent for any purpose other than for the resolution of insolvency, the Adjudicating Authority may impose such person any penalty as stipulated under Section 65. According to 2nd Respondent (Intervener), any person can bring to the notice of the Adjudicating Authority that the Insolvency Resolution Process has been initiated by the person fraudulently and with malicious intent for the purpose other than resolution of insolvency. For bringing the aforesaid facts to the notice of the Adjudicating Authority it is not necessary that he should be a shareholder or a creditor or a debtor for the Corporate Debtor. It is submitted that the 2nd Respondent (Intervener) intends to bring certain facts to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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