AI Structured Summary
Not yet generated for this judgment
Judgment
Ashok Bhushan, J.
This Appeal has been filed by the Resolution Professional challenging order dated 30.11.2023 passed by the Adjudicating Authority (National Company Law Tribunal), Division Bench, Court No. II, Kolkata in IA (IB) No.1131/KB/2022 filed by Rishima SA Investments LLC (Mauritius). Brief facts of the case necessary for deciding this appeal are:
Rishima SA Investments LLC (Mauritius) (hereinafter referred to as ‘Rishima’) entered into a Share Subscription and Shareholders’ Agreement dated 07.08.2008 under which the Rishima acquired 35% shareholding of the Corporate Debtor.
There being breach of the Share Subscription and Shareholders’ Agreement dated 07.08.2008, Rishima initiated arbitration proceedings in Singapore. Partial award was passed by the Arbitral Tribunal dated 21.02.2017 and 30.04.2019.
Shristi Infrastructure Development Corporate Ltd. (SIDCL) and the Corporate Debtor challenged the partial award before the Singapore International Commercial Court which was dismissed on 03.03.2020.
Rishima initiated proceedings before the Delhi High Court under Section 44, 46, 47, 48 and 49 of the Arbitration and Conciliation Act, 1996 seeking enforcement and execution of the Second Partial Award.
Arbitral Tribunal passed its Final Award on 12.07.2020 directing payment of amount of Rs.132,89,75,268/-.
Delhi High Court passed order on 30.05.2019 issuing notice in Enforcement Proceeding and passed an interim order restraining SIDCL and the Corporate Debtor from creating any third party interest which order was confirmed by the Hon’ble Supreme Court on 19.07.2019.
The CIRP against the Corporate Debtor – Sarga Hotel Pvt. Ltd. commenced by order dated 11.02.2022 of the Adjudicating Authority on application under Section 7 filed by Yes Bank Ltd.
On 14.02.2022, the IRP made public announcement in response to which Rishima filed claim of Rs.132,89,75,268 as Financial Creditor.
Resolution Professional on 16.03.2022 communicated to the Appellant that its claim filed in Form C did not meet the criteria of financial debt, hence, could not be verified and admitted. Resolution Professional asked Rishima to file corrected claim as per the CIRP Regulations.
Rishima filed claim in Form F as Other Creditor. Resolution Professional admitted entire claim of Rsihima as Other Creditor. Resolution Professional after receiving certain additional information issued communication dated 01.06.2022 revising the admitted amount of Rishima’s claim as a contingent claim from INR 132,89,75,268 to a notioinal amount of INR 1.
Rishima thereafter filed I.A. (IB) No.1131/KB/2022 challenging the decision of the Resolution Professional dated 01.06.2022 and 16.03.2022. Resolution Professional filed reply to the I.A. (IB) No.1131/KB/2022.
On 30.05.2023, the CoC approved the Resolution Plan of Shri Ram Multicom Private Limited. Resolution Professional filed I.A. (IB) No.1054/KB/2023 seeking approval of the Resolution Plan.
On 30.11.2023, the Adjudicating Authority passed an order allowing I.A. (IB) No.1131/KB/2022 filed by Rishima. The Adjudicating Authority by the impugned order held that Rishima cannot be called as a Financial Creditor and Rishima being a Decree Holder of a foreign award can be treated as other creditor. The application was partly allowed by the Adjudicating Authority. Aggrieved by order dated 30.11.2023 Resolution Professional filed this Appeal:
It is submitted by the Appellant that the foreign arbitral award which has been passed in favour of Rishima is pending consideration in the Enforcement Proceeding before the Delhi High Court and the said arbitral award cannot be equated with a decree of court, hence, claim of Rishima cannot be admitted for the amount of Rs.132,89,75,268/-. It is submitted that the Corporate Debtor has already challenged the arbitral award in the Enforcement Proceeding in the Delhi High Court which is pending consideration. It is submitted that the Resolution Professional has rightly admitted the claim for nominal value of Re.1.
Learned counsel for the CoC adopting the submissions of the Appellant submits that the order of the Adjudicating Authority be set aside and the claim of Rishima should be confined to Re.1 as notional value. It is submitted that foreign award is not a decree by itself.
We have considered the submissions of learned counsel for the parties and perused the record.
Subsequent to the order dated 30.11.2023 partly allowing application I.A. (IB) No.1131/KB/2022 filed by Rishima, Resolution Plan submitted by the Successful Resolution Applicant was approved by the Adjudicating Authority on 04.01.2024. Against order dated 04.01.2024 approving the Resolution Plan, Company Appeal (AT) (Ins.) No.143 of 2024 has been filed by Rishima SA Investments LCC (Mauritius) which has also been decided by our order of the date upholding the Resolution Plan. In order dated 04.01.2024, against the claim of Rishima of total amount of Rs.132,89,75,268/-, amount of Rs.1 Lakh has been allocated in the Resolution Plan which has been approved on 04.01.2024. While deciding Company Appeal (AT) (Ins.) No.143 of 2024, we have noted Para 6 of the order dated 04.01.2024 where the Adjudicating Authority has noticed the amount claimed, amount admitted and amount provided under the Resolution Plan. Para 6 of the order dated 04.01.2024 is as follows:
“6.The Shriram Multicom Private Limited under this Resolution Plan, has provided for a total plan value for the Corporate Debtor of Rs.30,099.01 Lakhs. The amount claimed, amount admitted and the amount provided under the Resolution Plan are enumerated below:
| Class of Creditors/ Particulars | Amount Claimed (Amount in Lakhs) | Amount Admitted (Amount in Lakhs) | Amount provided under the Resolution Plan (Amount in Lakhs) |
| Secured Financial Creditor | 76,382.63 | 76,382.63 | 30,033.17 |
| Unsecured Financial Creditors | 2,329.60 | 2,327.89 | 23.28 |
| Operational Creditors | 8,705.25 | 2,927.56 | 41.56 |
| Other Debts and Dues | 13,289.75 | 1.00 | 1.00 |
| Grand Total | 1,00,707.23 | 81,639.08 | 30,099.01 |
From the above, it is clear that in the Resolution Plan which stood approved by the Adjudicating Authority and also upheld by this Tribunal by its order of the date in Company Appeal (AT) (Ins.) No.143 of 2024, the total claim of the Appellant has been admitted as Rs.132,89,75,268/- and has been allocated Rs.1 Lakh. We are of the view that in this appeal it is not necessary for us to enter into the issue whether the Adjudicating Authority’s order dated 30.11.2023 partly allowing the application of Rishima needs to be upheld or not. The order dated 30.11.2023 passed by the Adjudicating Authority has been given effect to as reflected in the Resolution Plan which stands approved on 04.01.2024. We, thus see no reason to enter into various submissions raised by the Appellant questioning order dated 30.11.2023.
We, thus, are of the view that in view of approval of Resolution Plan on 04.01.2024, in which Resolution Plan order dated 30.11.2023 passed by the Adjudicating Authority has been given effect to, there is no occasion to consider challenge to the said order in this appeal. Appeal is dismissed with the above observation.