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TMI Blog2024 (2) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... , New Delhi in I.A. 3954 of 2021 in CP(IB) No. 1504(PB)2019. By the impugned Order, the Application filed by the Appellant praying for rejection of the Resolution Plan submitted by Respondent No. 3 has been rejected. 2. Brief facts of the case necessary to be noticed for deciding this Appeal are:- i. National Highway Authority invited proposals for upgradation of Hajipur Muzajfarpur Section of Existing NH-77. A concession agreement was executed between NHAI and Patna Highway Project Limited-Corporate Debtor on 24.02.2010. EPC Agreement was executed between the Corporate Debtor and Gammon India Limited for upgradation of Hajipur Muzaffarpur Section on 22.02.2011. A scheme of arrangement was entered between the Appellant and Gammon India Limited which was approved by National Company Law Tribunal by order dated 22nd March, 2017. After approval of scheme of arrangement, the EPC Contract for execution of the project stood transferred to the Appellant. ii. There were issues between the Appellant, the Corporate Debtor and NHAI resulting in non-completion of the project. There being dispute and difference between the Appellant and Corporate Debtor, Appellant issued notice of invocati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p in this Appeal. 3. We have heard Mr. Rajshekhar Rao, Learned Sr. Counsel for the Appellant and Mr. Krishnendu Datta, Learned Sr. Counsel for Respondent No. 1 and Mr. Ramji Srinivasan, Learned Sr. Counsel for CoC and Mr. Arun Kathpalia, Learned Sr. Counsel for SRA. 4. Mr. Rajshekar Rao, Learned Sr. Counsel appearing for the Appellant submitted that the claim filed by the Appellant before the Resolution Professional was kept under disputed category and in the Resolution plan, the SRA has provided for receiving of the same amount from the NHAI. It is submitted that on the one hand the claim of the Appellant is kept under disputed category and on the other hand, same amount is being claimed from NHAI which is to be received by the SRA. It is submitted that Resolution Plan containing such clause could not have been approved and the Adjudicating Authority committed error in rejecting I.A. No. 3954 of 2021 by which the Appellant has prayed for rejection of the Resolution Plan. It is submitted that in the Resolution Plan the same amount of Rs. 428,22,98,000/- is referred to as a claim raised by contractor i.e. the Appellant and which amount was to be reimbursed from the NHAI to the Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l infirmity in treatment of the appellant's claim, claim was received from the Appellant, collated and verified by the RP and upon such verification the claim was kept under heading "amount under dispute". Considering the appellant's claim is subject matter of the dispute in the arbitration proceedings. 6. We have considered the submissions of Learned Sr. Counsel for the parties and have perused the record. 7. In the application which was filed by the Appellant being I.A. No. 3954 of 2021, following prayers were made: "a. Reject the Resolution Plan submitted by Silver Point Luxembourg S.A.R.I. on 11.03.2021: and b. Pending hearing of this Application, not pass any order or direction in I.A. 1538 of 2021 in C.P.(IB) No. 1504/PB/2019; and c. Direct the Resolution Professional to provide a copy of Resolution Plan submitted by Silver Point Luxembourg S.A.R.I. on 11.03.2021 to the Applicant; and d. Direct the Resolution Professional to issue fresh invitation for Expression of Interest; and/or e. Pass such other and further order as this Tribunal may deem fit and proper and in the facts and circumstances of the instant case." 8. We have noted above that plan submitted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porate Debtor had to endure sizeable cost overruns and additional financial implication on account of idling of resources, interest costs, among others. The quantum of these cost overruns was very substantial and was one of the main reasons that induced the insolvency of the Corporate Debtor. The Concession Agreement specifically provides that, under Article 35.2 (Compensation for Breach of Agreement) of the Concession Agreement, the Corporate Debtor shall be reimbursed all direct and indirect costs resulting out of the defaults that are solely attributable to the NHAI. In this regard, the following cost claims are reimbursable to the Corporate Debtor by the NHAI: S No. Particulars Amounts (IN INR) BASIS 1. Claims raised by contractor(s) on the Corporate Debtor 4,28,23,00,000 As filed on the Corporate Debtor 2. Increase in capital costs (including increase in interest during construction over and above that envisaged at the time of the initial financial closure) 8,71,00,00,000 Actual completion cost less the capital cost planned at the time of financial closure Total 12,99,23,00,000 12. It is submitted that plan contemplates that cor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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