2022 (7) TMI 95 - Tri - Insolvency and Bankruptcy

Maintainability of application - objection of non-applicant - HELD THAT - Hon ble NCLAT s decision in the matter of SREI Infrastructure Finance Ltd v. Right Tower Pvt. Ltd 2018 (2) TMI 1838 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI is referred wherein while upholding the right of any person to intervene it was held that any person may intervene any may bring the facts to the notice of the Adjudicating Authority. After perusal of the contents of this application documents on record objections of non-applicant thereto and position of law it can be opined that there is material present to allow intervention of the applicant and accordingly the instant Application is allowed to the extent of intervention by applicant. Petition disposed off.

Issues Involved:
1. Impleadment of the Applicant to the Company Petition.
2. Dismissal of the Company Petition with costs.
3. Imposing costs for malicious filing.
4. Fair treatment of the Applicant in the resolution plan.
5. Stay of the Company Petition pending the hearing of the Application.
6. Allegations of collusion and fraudulent initiation of CIRP.
7. Maintainability and limitation of the Company Petition.

Detailed Analysis:

1. Impleadment of the Applicant to the Company Petition:
The Applicant sought to be impleaded in the Company Petition No. (IB)/2(KB) 2021, arguing that it has crystallized rights against the Corporate Debtor under two Arbitral Awards. The Tribunal allowed the intervention, citing the Hon'ble NCLAT's decision in SREI Infrastructure Finance Ltd v. Right Tower Pvt. Ltd, which upheld the right of any person to intervene if the Insolvency Resolution Process is initiated fraudulently or with malicious intent.

2. Dismissal of the Company Petition with Costs:
The Applicant argued that the Company Petition was filed by the Operational Creditor in collusion with the Corporate Debtor to frustrate the Applicant's rights under the arbitral awards. The Tribunal did not dismiss the Company Petition but allowed the Applicant to intervene, leaving the merits of the Company Petition to be decided later.

3. Imposing Costs for Malicious Filing:
The Applicant sought costs to be imposed on the Operational Creditor and Corporate Debtor for maliciously filing the Company Petition. The Tribunal did not impose any costs at this stage but allowed the intervention to scrutinize the claims and relations between the parties.

4. Fair Treatment of the Applicant in the Resolution Plan:
The Applicant requested fair treatment in the resolution plan if the Company Petition was admitted. The Tribunal did not provide any specific direction on this request but allowed the intervention to ensure the Applicant's concerns are considered.

5. Stay of the Company Petition Pending the Hearing of the Application:
The Applicant requested a stay of the Company Petition pending the hearing of its application. The Tribunal did not explicitly grant a stay but allowed the intervention, indicating that the Applicant's concerns would be addressed during the proceedings.

6. Allegations of Collusion and Fraudulent Initiation of CIRP:
The Applicant alleged that the Corporate Debtor and SHPL were making multiple attempts to initiate CIRP against themselves to frustrate the Applicant's rights. The Tribunal noted the Applicant's concerns and allowed the intervention, referencing the NCLAT's observations about possible collusion in a previous case involving SHPL.

7. Maintainability and Limitation of the Company Petition:
The Applicant argued that the Company Petition was time-barred and non-maintainable, citing the default date and the limitation period under the IBC. The Corporate Debtor countered that the Applicant's claims were baseless and that the Company Petition was maintainable. The Tribunal did not make a final determination on the maintainability but allowed the intervention to ensure a thorough examination of the issues.

Conclusion:
The Tribunal allowed the Applicant's intervention in the Company Petition No. (IB)/2(KB) 2021, emphasizing that this decision should not be construed as an opinion on the merits of the Company Petition. The main Company Petition was listed for further hearing on 29.07.2022. The order highlighted the importance of scrutinizing the claims and relations between the parties, ensuring that the Applicant's concerns about collusion and fraudulent initiation of CIRP are addressed.

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