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TMI Blog2023 (9) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... ition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Arbitration Act') on 26.09.2016. It appears that on the same date, the appellant filed execution proceedings in respect of the said award. Those execution proceedings were ultimately adjourned sine die on 22.12.2017 on account of the pendency of the proceedings under Section 34 of the Arbitration Act. These proceedings under Section 34 of the Arbitration Act culminated in the award being upheld by the A.D.J. (Special Commercial Court, Gurugram), albeit with some modifications, on 25.04.2019. An appeal filed against the same under Section 37 of the Arbitration Act is stated to be pending. 3. Meanwhile, the Corporate Insolvency Resolution Process ('CIRP') was initiated against the Corporate Debtor in respect of three real estate projects viz. (i) Sector 114, Gurugram, (ii) Sector 89, Faridabad, and (iii) KST Whispering Heights in Sector 88, Faridabad by certain homebuyers who had invested in these projects. This application under Section 7 of the Insolvency and Bankruptcy Code (hereinafter referred to as 'the IBC') was admitted on 27.03.2019 by the Adjudicating Authority. On the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant's claim, as this claim would have appeared in the Corporate Debtor's books of accounts; (b) in case such books of accounts were not available, respondent No. 1 had a duty to obtain them and verify the financial position; and (c) as such announcement was made through public newspapers, it was likely that the appellant missed out on the same. 7. Respondent No. 1 thereafter preferred an appeal under Section 61 of the IBC before the National Company Law Appellate Tribunal, New Delhi ('NCLAT') against the Adjudicating Authority's order. 8. The challenge by the respondent no.1 before the NCLAT was primarily based on the potential consequences of allowing such a belated claim when the COC had already approved the Resolution Plan. The appellant having made the claim more than a year after the invitation of claims by the public notice dated 30.03.2019; it was urged that allowing such claims would set the clock back on the CIRP and set a precedent, thereby making CIRP prolonged and inefficacious. In support of this plea, reliance was placed on the judgment in Committee of Creditors of Essar Steel India Limited through Authorised Signatory v. Satish Kumar Gupta and Ors. (2020) 8 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Adjudicating Authority seeking that a direction be issued to the ex-management to provide all records. Although nothing came of this attempt, it reflected his sincere efforts; (iv) Regulations 12 and 13 of the IBBI Regulations obliged the RP to accept claims filed within the extended period of 90 days of the commencement of CIRP. Brilliant Alloys (supra) dealt with the timelines under Section 12A of the IBC and Regulation 30A of the IBBI Regulations. These provisions pertained to the withdrawal of an application. In this context it was held that that IBBI Regulations can be directory depending on the facts of each case; and (v) the resolution plan, as approved by the COC, would be jeopardised if new claims were entertained. 10. The aforesaid view of the NCLAT resulted in the appellant approaching this Court. Appellant's pleas before the Supreme Court: 11. The appellant contended that the claim in terms of the award was a contingent claim as proceedings under Section 37 of the Arbitration Act remain pending before the High Court of Punjab and Haryana against the dismissal of the Corporate Debtor's challenge. There ought to be a provision for contingent claims in the reso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Rainbow Papers (supra) to the facts of that case alone. At this stage, we may notice that the question of law in the two judgments was different. Our view : 16. We have examined the aforesaid submissions. The only issue before us is whether the appellant's claim pertaining to an arbitral award, which is in appeal under Section 37 of the said Act, is liable to be included at a belated stage - i.e. after the resolution plan has been approved by the COC. 17. It is undisputed that the process followed by respondent no. 1 was not flawed in any manner, except to the extent of whether an endeavour should have been made by respondent no. 1 to locate the liabilities pertaining to the said award from the records of the Corporate Debtor. 18. If we analyse the aforesaid plea, it is quite obvious that respondent no. 1 did what could be done to procure the Corporate Debtor's records by even moving an application under Section 19 of the IBC. That it was not fruitful is a consequence of the Corporate Debtor not making available the material. It is thus not even known whether there was a reflection in the records on this aspect or not. 19. The second question is whether the delay in the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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