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TMI Blog2019 (1) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... e where it has not been pronounced by a Court of competent jurisdiction and founded on an incorrect view of international law. (c) The Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction. 2. While holding so, the Adjudicating Authority by impugned order dated 11th December, 2017 also held as follows: "28. A conjoint reading of Section 44 A of CPC along with Section 13 & 14 CPC would show that the petitioner need to satisfy a number of requirements. (A) A certified copy is sine qua non for recognizing a decree as valid in India. Moreover, its compliance with the principles of natural justice also need to be shown. (B) It is required to be executed in the District Court of this Country. (C) It is also required that the decree should be pronounced by a Court of Competent jurisdiction and on merits. (D) The decree must not have been obtained by fraud and it rnust not be founded on a breach of any law in force in this Country. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1996 in India. * While the US Court places reliance on the 'Commercial Agreement' it brushes aside the issue of governing law and arbitration. Thus, not recognizing the Indian Law is contrary to the public policy. 5. We have heard learned counsel for the parties and perused the records. 6. In "Binani Industries Limited Vs. Bank of Baroda & Anr. - Company Appeal (AT) (Insolvency) No. 82 of 2018 etc.", this Appellate Tribunal by its judgment dated 14th November, 2018 discussed the principles of 'I&B Code' and held as follows: 1. The objective of the 'I&B Code' As evident from the long title of the 'I&B Code', it is for reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximisation of value of assets of such persons to promote entrepreneurship, availability of credit, and balance the interests of all stakeholders. The recent Ordinance explicitly aims to promote resolution over liquidation. 2. The objective of the 'I&B Code' is Resolution. The Purpose of Resolution is for maximisation of value of assets of the 'Corporate Debtor' and thereby for all creditors. It is not maximisation of value f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The liabilities of all creditors who are not part of the negotiation process must also be met in any negotiated solution." b. The 'I&B Code' aims at promoting availability of credit. Credit comes from the 'Financial Creditors' and the 'Operational Creditors'. Either creditor is not enough for business. Both kinds of credits need to be on a level playing field. 'Operational Creditors' need to provide goods and services. If they are not treated well or discriminated, they will not provide goods and services on credit. The objective of promoting availability of credit will be defeated. c. The 'I&B Code' is for reorganisation and insolvency resolution of corporate persons, ....for maximisation of value of assets of such persons to.... balance interests of all stakeholders. It is possible to balance interests of all stakeholders if the resolution maximises the value of assets of the 'Corporate Debtor'. One cannot balance interest of all stakeholders, if resolution maximises the value for a or a set of stakeholder such as 'Financial Creditors'. One or a set of stakeholders cannot benefit unduly stakeholder at the cost of another. d. The 'I&B Code' prohibits any action to foreclo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution Applicant' and detailed, regulated process for the purpose of sale. It is possible that under a 'Resolution Plan', certain rights in the 'Corporate Debtor', or assets and liabilities of the 'Corporate Debtor' are exchanged, but that is incidental. It is not an auction. Depending on the facts and circumstances of the 'Corporate Debtor', 'Resolution Applicant' may propose a 'Resolution Plan' that entails change of management, technology, product portfolio or marketing strategy; acquisition or disposal of assets, undertaking or business; modification of capital structure or leverage; infusion of additional resources in cash or kind over time; etc. Each plan has a different likelihood of turnaround depending on credibility and track record of 'Resolution Applicant' and feasibility and viability of a 'Resolution Plan' are not amenable to bidding or auction. It requires application of mind by the 'Financial Creditors' who understand the business well. It is not recovery: Recovery is an individual effort by a creditor to recover its dues through a process that has debtor and creditor on opposite sides. When creditors recover their dues - one after another or simultaneously- fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement' has been reached between the 'Licensor' and its Affiliate who have developed and are in the process of further developing a system identified by the trade name and service mark "FRANCORP-(r)" rating to the establishment and operation of businesses which provide highly specialized franchise consulting and franchise development services, and other services and activities. 11. According to the Appellants, they had contacted by one Mr. Gaurav Marya, Principal and Managing Director of 'Franchise India Holdings Ltd.', who expressed an interest in partnering with the Appellants in utilizing and monetizing the license and associated opportunities within India. Thereafter, a 'MOU' was reached between the Appellants, Mr. Gaurav Marya and 'Franchise India Holdings Ltd.'. Pursuant to 'MOU', 'Franchise India Holdings Ltd.' and Mr. Gaurav Marya agreed to pay a sum of USD 30,000/- as license fees upon the transfer of the license into the 'Indian Joint Venture Entity', with an additional USD 270,000/- to be paid to the Appellants within one year of the transfer of the First License into the 'Indian Joint Venture Entity'. Subsequently, on 7th October, 2008, the Respondent Company- ('Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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