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TMI Blog2024 (4) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... hority (National Company Law Tribunal), Division Bench, Court No. II, Kolkata in IA (IB) No.1054/KB/2023 by which order the Adjudicating Authority has allowed the application filed by the Resolution Professional for approval of Resolution Plan submitted by Successful Resolution Applicant, Respondent No.2 herein. Appellant aggrieved by approval of Resolution Plan has come up in this Appeal. Brief facts of the case necessary for deciding this appeal are: (i) On 07.08.2008, a Share Subscription and Shareholders' Agreement was executed between the Appellant - Rishima SA Investments LLC (Mauritius), Shristi Infrastructure Development Corporate Ltd. and the Corporate Debtor, wherein the Appellant and Shristi acquired 35% and 65% shareholding of the Corporate Debtor, respectively. (ii) A Singapore-seated Arbitration against Shristi Infrastructure Development Corporate Ltd. and the Corporate Debtor was commenced by the Appellant in which partial award dated 30.04.2019 and final award dated 12.07.2020 was passed. Under the final award payment of Rs.132.39 Crores was directed towards costs, interest, damages. Partial and final awards from Singapore Arbitration led to filing of enforcemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Learned counsel for the Resolution Professional refuting the submissions of learned counsel for the Appellant submits that the Resolution Professional has rightly not accepted the claim of the Appellant as Financial Creditor, however, under the order of the Adjudicating Authority dated 30.11.2023, the Appellant's claim has been accepted as 'Other Creditor', taking which into consideration, the Successful Resolution Applicant has already allocated an amount of Rs.1 Lakh in the Resolution Plan for the Appellant. It is submitted that the order passed in I.A. (IB) No.1131/KB/2022 has been misread by the Appellant. There was no direction that amount of Rs.132,89,75,268/- should be kept in the escrow account. It is submitted that the Adjudicating Authority observed that the value provided against the Applicant's claim in the plan would be paid subject to the outcome of the execution petition pending before the Delhi High Court and till such time amount could be held in escrow account. There is no direction by the Adjudicating Authority that the entire amount of Rishima's claim has to be set aside and placed in escrow account. The total outlay of the plan is Rs.301 Crores out of which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the communications of the Resolution Professional dated 16.03.2022 and 01.06.2022. The Adjudicating Authority vide its order dated 30.11.2023 decided the application. The Adjudicating Authority has framed two questions in I.A. (IB) No.1131/KB/2022 in Para 31, which is as follows: "31. For the sake of brevity, we are not reproducing the complete details of the case as what needs to be addressed in this application are: a. Whether the claim made by the Applicant would qualify as "financial debt" or "other debt". b. Whether the Resolution professional's action of admitting only Rs.1 against claim of Rs.132,89,52,568/- is legally correct or not. 8. The Adjudicating Authority in Para 35 held that the Appellant cannot be held as Financial Creditor, however, it was held that the Appellant being decree holder should be allowed as 'Other Creditor'. In Para 36 of the order it was held that the debt arising out of a foreign award has to be treated as 'other debt'. In Para 36 following has been held: "35. Therefore, we are of the view that the Applicant cannot be called as financial creditor, and he is not entitled to participate in the Committee of Creditors (CoC) meeting of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Para 6 of the order, which 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 13. When we look into Para 6 of the order, it is clear that against the column 'Other Debts and Dues' the admitted claim of the Appellant of Rs.132,289.75 Lakhs has been noted against which amount of Rs.1 Lakh was proposed in the Plan. From Para 6 of the order, it is clear that amount claimed by the Secured Financial Creditor was Rs.76,382.63 Lakhs against which total plan value of Rs.30,099.01 Lakhs has been proposed. 14. Hon'ble Supreme Court in "Committee o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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