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TMI Blog2022 (7) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial ) And Shri Harish Chandler Suri , Member ( Technical ) For the Operational Creditor : Mr. Rudraman Bhattacharyya, Advocate Ms. Suchismita Ghosh, Advocate Mr. Sourojit Dasgupta, Advocate Ms. Amrita Panja Moulick, Advocate For the Corporate Debtor : Mr. Rishav Banerjee, Advocate Mr. Rajarshi Banerjee, Advocate For the Intervenor : Mr. Debnath Ghosh, Advocate Mr. Shushovit Dutta Majumder, Advocate Mr. Aditya Sharma, Advoate ORDER Rohit Kapoor, Member (Judicial): 1. This Court convened through hybrid mode. 2. This is an application under rule 11 of the National Company Law Tribunal Rules 2016 filed by the Rishima SA Investments LLC (Mauritius) (hereinafter known as the Applicant) against Ahluwalia Contracts (India) Limited (hereinafter known as the Operational Creditor) and Shrishti Infrastructure Development Corporation Limited (hereinafter known as the Corporate Debtor), seeking the following reliefs: a. Impleadment of the Applicant to the Company Petition No. (IB)/2(KB) 2021; and b. Dismissal with costs of the Company Petition No. (IB)/2(KB) 2021; and c. Imposing of cost on the Operational Creditor and Corporate Debtor for maliciously filing the Company Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled its request for arbitration with the International Chamber of Commerce ("ICC"). On 30.04.2019, the arbitral tribunal constituted for the arbitration passed the Partial Award directing, inter alia, the Corporate Debtor to pay Rs. 761 Cr to the Applicant. Accordingly, on 29.05.2019, the Applicant filed OMP 5 for enforcement and execution of Partial Award. [Annexure D]. The corporate Debtor challenged the Partial Award before Singapore International Commercial Court ("SICC"). However, the said challenge was dismissed by SICC vide Order dated 03.03.2020. Thereafter, the Corporate Debtor filed an appeal before Court of Appeal, Republic of Singapore to challenge Order dated 03.03.2020, which was subsequently deemed to have been withdrawn on 25.05.2020. On 12.07.2020, the arbitral tribunal passed the final award in the arbitration directing, inter alia, the Corporate Debtor to pay Rs. 16.18 Cr along with interest to the Applicant [Annexure E]. 3.6. During the pendency of OMP 5, a different Operational Creditor of SHPL, namely, Universal International Creation Limited ("UICL") filed a collusive section 9 application at the behest of the Corporate Debtor and SHPL to admit SHPL into CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate-Debtor vide email dated 11.08.2020 (attached at page 27, Reply of Respondent No. 2 UICL in CA No. 892 / 2020, diary number 23628/21.11.2020), the corporate debtor proceeds to admit the operational debt of UICL without so much as a weak defence, nor did it seek the right and time to file a complete reply, as would be normally expected. Thus, without a full and proper hearing, as was desirable from the point of view of natural justice, the impugned order is passed by the Adjudication Authority (NCLT) on 12.08.2020. If anything, the events as they unfolded show the haste and alacrity with which the matter as serious as initiating CIRP against a 'going concern' was dealt with, without any regard of natural justice." 28. It would, therefore, not be far-fetched to infer that the corporate debtor appeared to be itself keen and waiting for admission of Section 9 application and initiation of CIRP against itself. 33. In view of the submissions and arguments made by the Appellant and Respondents and a close perusal of documents submitted by the operational creditor and other parties lead us to the conclusion that the application u/s 9 was not submitted within limitation an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Singapore High Court and the same was dismissed. 3.15. The Corporate Debtor and SHPL also sought to illegally terminate the SSHA but the Arbitral Tribunal decided against the Corporate Debtor in the said matter. Further, the Corporate Debtor floated a scheme of amalgamation and demerger to hive off its hotel business (including assets of SHPL) to a shell company. The Applicant herein, sought impleadment in the said matter and was allowed vide order dated 31.07.2018. the Corporate Debtor later on requested permission of the Tribunal to withdraw its application, which was allowed. 3.16. The Corporate debtor has filed a petition under sections 241, 242 of the Companies Act, 2013 alleging oppression and mismanagement by nominee directors of the Applicant herein. The reliefs claimed in said petition were rejected vide order dated 23.11.2017. in the said order, the Tribunal also observed the following" " 62. It is also clear from the above that petition under sec. 241 and 242 is only dressed up a petition with a purpose to bypass the arbitration agreement…" 3.17. Further, during the arbitration proceedings, SHPL illegally removed the Applicant's nominee director from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (12) of IBC, the limitation period of 3 years to file a Section 9 application expired on 26.09.2019. It is stated that the Operational Creditor has filed the present Section 9 Application only on 27.12.2020. Therefore, the present Company Petition may be dismissed as time barred. 3.22. Alternatively, if the date of default is taken as 19.06.2020 as stated by the Operational Creditor in its demand notice dated 26.09.2020, even then the present Company Petition is not maintainable in view of Section 10A of IBC. 4. Submissions of Behalf of the Corporate Debtor: 4.1 The Corporate Debtor has denied that the Applicant is a financial creditor of the Corporate Debtor, and has stated that it is not so in terms of the Insolvency and Bankruptcy Code, 2016 ("IBC"). It has claimed the issue of whether the Applicant is a financial creditor of the Corporate Debtor or not is immaterial in the context of the instant Company Petition and intervention Petition. 4.2 The Corporate Debtor has further denied the statement of the Applicant in paragraph 30 of the instant Intervention Petition that "in view of the above findings of the Hon'ble NCLAT, the Applicant has sound reasons to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f and the Operational Creditor that had been duly and diligently notified by it to the Operational Creditor much prior to its receipt of the said statutory demand notice. These pre-existing disputes had been duly and diligently highlighted in the said Affidavit-in-Reply and include a host of disputes/concerns regarding quality as well as the levy of liquidated damages amounting to as much as Rs. 4, 79, 92, 247/- (Rupees Four Crore Seventy-Nine Lakhs Ninety-Two Thousand Two Hundred and Forty-Seven only) on the Operational Creditor for admitted delays. 4.7 The Corporate Debtor has also highlighted the fact that the affidavit purported by the Operational Creditor to be an affidavit under section 9(3)(b) of the IBC contains misstatements regarding the reply duly sent by the Corporate Debtor to the purported statutory demand notice sent by the Operational Creditor. 4.8 The Corporate Debtor has expressly submitted via the said Affidavit-in- -Reply that the instant Company Petition filed by the Operational Creditor is not maintainable and liable to be dismissed on account of several grounds including the fact that it is barred by limitation. 4.9 Regarding the NCLAT judgment dated 27.08 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant Intervention Petition are palpably baseless and misdirected and are better characterized as misapprehensions. Therefore, the reliefs prayed for by the Applicant on the basis of such misapprehensions cannot be granted by this Tribunal. 4.13 The Corporate Debtor further categorically denies and disputes that its "prior conduct demonstrates deployment of dilatory tactics to frustrate ongoing legal proceedings," as alleged or at all, and further states that the purported facts and submissions canvassed in paragraphs 43-44 and 46- 48 of the instant Affidavit-in-reply are immaterial to the facts and circumstances of the instant matter, especially in light of the fact that the Corporate Debtor is strenuously resisting the instant Company Petition. 5. Analysis and Findings: 5.1 We have heard the Ld. Counsel for the Applicant and the Ld. Counsel for the Respondent and perused the record. 5.2 Regarding the objection of non-applicant regarding maintainability of this application and reliefs sought therein, we would like to refer to the Hon'ble NCLAT's decision in the matter of SREI Infrastructure Finance Ltd v. Right Tower Pvt. Ltd[2018 SCC Online NCLAT 58], wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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