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TMI Blog2023 (2) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... tor and by order of the same date allowed the application of the Resolution Professional approving the Resolution Plan. Brief facts of the case necessary to be noticed for deciding this Appeal are: (i) The CIRP commenced against the Corporate Debtor - Dolphin Offshore Enterprises (India) Limited by order dated 16.07.2020. (ii) Public announcement was made on 21.07.2020, in pursuance of which Appellant submitted its claim in Form 'C' on 31.07.2020 raising a claim of Rs.50 Lakhs as financial debt against the Corporate Debtor. (iii) The Resolution Professional informed the Appellant by email dated 30.07.2021 that debt of Appellant cannot be termed as financial debt and he may file his claim as operational debt. (iv) In CIRP, an I.A. No. 2247/2021 was filed by the Appellant seeking a direction to admit the claim of the Appellant as financial creditor and to reconstitute the Committee of Creditors (CoC). (v) In the meantime, Resolution Plan of a Resolution Applicant was approved by the CoC on 17.02.2022 and the Resolution Professional filed an application being I.A. No. 665/2022 before the Adjudicating Authority for approval of the Resolution Plan. (vi) Appellant has entered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrators executors and permitted assigns): AND JAL Engineers Pvt Limited, a company duly incorporated and validly existing under the laws of India having its office at Runwal Chambers 1st Floor, 1st Road, Chembur Mumbai - 400 701, (hereinafter individually referred to as the Member 2), which expression shall unless excluded by or repugnant to the subject or context thereof, be deemed to include its successors, administrators executors and permitted assigns): AND The above Member 1 and Member 2 hereinafter shall be individually referred to as "Consortium member" and collectively be referred to as "Consortium". WHEREAS Both the Consortium members have entered into an MOU dtd 24th day 2018 for jointly submitting the bid against the tender no.MR/ES/MM/PCWPPII/ 01/2018/P85ICI8002 FOR Protective Coating of well head platform project (PCWPP-II) floated by Oil and Natural Gas Corporation Limited. THE PARTIES HEREBY AGREE AS UNDER 1) Member 1 as the leader of the Consortium will arrange the Bid bond bank guarantee for INR 2,16,77,308/- which is to be submitted as part of the Consortium bid. 2) Member 2 will transfer INR 50,00,000/- to Member 1 being their share f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded in the balance sheet of the corporate debtor, or with information utility or the depository of securities or any other registry that records the ownership of assets including- (i) assets over which the corporate debtor has ownership rights which may be located in a foreign country; (ii) assets that may or may not be in possession of the corporate debtor; (iii) tangible assets, whether movable or immovable; (iv) intangible assets including intellectual property; (v) securities including shares held in any subsidiary of the corporate debtor, financial instruments, insurance policies; (vi) assets subject to the determination of ownership by a court or authority; x...x...x Explanation.-For the purposes of this 1[section], the term "assets" shall not include the following, namely:- (a) assets owned by a third party in possession of the corporate debtor held under trust or under contractual arrangements including bailment; (b) assets of any Indian or foreign subsidiary of the corporate debtor; and (c) such other assets as may be notified by the Central Government in consultation with any financial sector regulator." 9. The Explanation to Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (1968) 3 All. ER. 651. In my opinion, the ratio of this judgment and the formulation of relevant principles by the Court of Appeal in the case of (Quistciose Investments Ltd. v. Rolls Razor Ltd.)7, (in voluntary liquidation), (1968) 1 All ER. 613 also clinch the issue in favour of the applicants. In the above referred case, the House of Lords affirmed the decision of Court of Appeal. Lord Wilberforce delivered the main judgment on behalf of House of Lords and Lord Reid, Lord Morris of Borth-YGost, Lord Guest and Lord Pearce concurred with Lord Wilberforce. It is necessary to notice the material facts of the case before deducing the relevant principles laid down in the base. In an annual general meeting of RR. Ltd. on July 2, 1964, payment of dividend was approved. R.R. Ltd. had an overdraft with the Bank which exceeded the limit. The Bank refused to make funds available to RR. Ltd. for the purpose of implementation of resolution declaring dividends." 11. The third judgment on which learned counsel for the Appellant placed reliance is judgment of the Hon'ble Supreme Court in "(2004) 8 SCC 355, Canbank Financial Services Ltd. vs. Custodian & Ors.". In Paras 46 and 47, Hon'ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor as per Section 18(1)(f), noticed above. There can be no quarrel to the law laid down by the Hon'ble Calcutta High Court, Hon'ble Bombay High Court and Hon'ble Supreme Court as noticed above but question which needs to be answered is as to whether the amount which was given by the Appellant to the Corporate Debtor was an amount given in trust. 13. The agreement entered between the parties on 24.10.2018, as noticed above clearly indicate that the amount was the share of the Appellant for submitting Bid Bond Bank Guarantee by the consortium, Appellant being one of the member of the consortium. The agreement dated 24.10.2018 which was basis of the claim of the Appellant in no manner indicate that the amount was given in trust to the Corporate Debtor. Amount was given by the Appellant as his share to submit Bid Bond Bank Guarantee. Thus, the submission of the learned counsel for the Appellant that the amount given by the Appellant was the amount given in trust to the Corporate Debtor is wholly unfounded and cannot be accepted. 14. With regard to the order of the Adjudicating Authority approving Resolution Plan, no ground has been urged which may warrant any inter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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