9911796707
Advanced Search 
TMI Blog2024 (11) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... al Tripathi, Mr. Rangasaran Mohan, Ms. Ashita Chawla, Advocates. For the Respondents: Mr. Arijit Prasad Sr. Advocate with Mr. Sanjay Bhatt, Ms. Apoorva Chowdhury, Advocates for RP/ R1. Mr. Krishnendu Datta Sr. Advocate with Ms. Nishtha Kauza, Ms. Alina Mathew, Mr. Kumar Shubham, Advocates for Art. Mr. Abhijeet Sinha Sr. Advocate with Mr. Apoorv Agarwal, Mr. Manav Goyal, Ms. Ritika Prasad, Ms. Tanushvi Singh, Advocates for Parinda JUDGMENT Ashok Bhushan, J. These two Appeals have been filed by the same Appellant challenging the order dated 30.04.2024 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi, Court-III. Company Appeal (AT) (Insolvency) No.1117 of 2024 has been filed challenging the order dated 30.04.2024 passed in IA No. 4648 of 2020 which was filed by the Appellant. By the impugned order the IA No. 4648 of 2020 has been disposed of. Company Appeal (AT) (Insolvency) No.1116 of 2024 has been filed against the order dated 30.04.2024 passed in Intervention Petition IA No. 58 of 2023 by which order Adjudicating Authority has allowed the intervention application filed by M/s. Art Constructions Pvt. Ltd., the Successful Resolution Applicant (SRA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the corporate debtor has not been able to discharge its obligations under the Collaboration Agreement. By the legal notices, Collaboration Agreement dated 05.07.2008, addendum dated 28.10.2009, Assignment Agreement dated 25.01.2010 and General Power of Attorney dated 05.07.2008 were terminated. The developers were called upon to desist from dealing with project property. The developers objected to the legal notice and asked to withdraw the allegations made in the legal notice. M/s. Era Landmarks (India) Ltd. and 'Parinda Buildcon Private Limited' filed an application under Section 11(5) of the Arbitration & Conciliation Act, 1996 praying for appointing Sole Arbitrator for adjudication of the disputes between the parties in terms of the Collaboration Agreement dated 05.07.2008. In the application, owners as well as M/s. Upkar Developers (India) Pvt. Ltd. was impleaded as Respondents. High Court of Karnataka at Bangalore vide its order dated 20.04.2012 appointed Justice N. Santosh Hegde, Former Judge of the Supreme Court of India as Sole Arbitrator to arbitrate and adjudicate upon the disputes arising out of the said Agreement. Before Sole Arbitrator, claims were filed by both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned therein were the properties of 35 acres 11 Guntas which was subject to the Development Agreement. The Resolution Professional after coming to know about the above notice dated 07.08.2020 sent objection in response to the public notice. Resolution Professional stated that the Corporate Debtor- Era Landmarks Ltd. is currently under CIRP. Reference of Collaboration Agreement executed by owners dated 05.07.2008 was made and Resolution Professional pleaded that any step dealing the property shall be violation of Moratorium under Section 14 of the IBC. Appellant issued a reply to the objection of the Resolution Professional. An IA No.4648 of 2020 was filed by the Appellant in the CIRP of the corporate debtor praying that the Tribunal may please to direct removal of the schedule property from the CIRP and schedule property be deleted from the Information Memorandum circulated by the Resolution Professional. In the IA No.4648 of 2020, orders were passed by the Adjudicating Authority on 21.12.2021 observing that IA No.4648 of 2020 does not contain a prayer. An IA for rectification was also dismissed. Appellants filed Company Appeal (AT) (Ins.) Nos. 854 & 855 of 2022 before this Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d over to the developers rather they were authorised to enter upon the schedule property and develop the same. The order passed by the Sole Arbitrator appointed on an application filed by the corporate debtor and 'Parinda Buildcon Private Limited' determined the rights of the parties which have attained finality. Order dated 15.07.2015 is an award delivered by the Sole Arbitrator which is binding between the parties. Challenge to the order dated 15.07.2015 passed by the Sole Arbitrator by the corporate debtor and 'Parinda Buildcon Private Limited' has been dismissed both by the Civil Court as well as the High Court, hence, the award delivered by the Arbitrator has become final between the parties and could not have been questioned by the corporate debtor in the CIRP proceedings. Sole Arbitrator has returned finding that 1st Claimant i.e. Era Landmarks (India) Ltd. has not retained any one of its rights which accrued to it from the Collaboration Agreement, meaning thereby, that no right could have been pursued either before the Sole Arbitrator or before the Adjudicating Authority on behalf of the Corporate Debtor. It is submitted that the assignee i.e. 'Parinda Buildcon Private Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity is unsustainable and IA No.4648 of 2020 deserves to be allowed excluding the subject land from the CIRP of the Corporate Debtor. 5. Shri Arijit Prasad, Learned Senior Counsel for the Resolution Professional refuting the submissions of the Counsel for the Appellant submits that the corporate debtor had acquired development rights in the subject land consequent to Collaboration Agreement dated 05.07.2008 and Supplementary/Addendum Agreement dated 28.10.2009. It is submitted that the Assignment Agreement dated 25.01.2010 was executed in favour of 'Parinda Buildcon Private Limited', the subsidiary of the corporate debtor only for operational convenience. The Corporate Debtor retained its obligation of being responsible to perform the terms of the Collaboration Agreement in case of default or failure by 'Parinda Buildcon Private Limited'. Appellants were also consenting parties to the Assignment Agreement. In terms of the Collaboration Agreement, Corporate Debtor and 'Parinda Buildcon Private Limited' repaid the entire loan amount of Rs.17.19 Crores to HUDCO and an amount of Rs.1.34 crores was also directly paid to HUDCO towards the interests. An act of alleged unilateral terminat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitration proceedings is not an award under the Arbitration & Conciliation Act, 1996. It is further submitted that a duly registered Collaboration Agreement dated 05.07.2008 entered into between the parties cannot be unilaterally terminated by way of a legal notice without following the due process of law. The legal notice issued by the Appellants has no consequence on registered Collaboration Agreement. The Assignment Agreement dated 25.01.2010 executed by the corporate debtor in favour of 'Parinda Buildcon Private Limited' its wholly owned subsidiary was only partial assignment of rights for operational convenience and that too limited to implementation and marketing under the Collaboration Agreement does not amount to novation of contract. The Collaboration Agreement dated 05.07.2008 still continues and cannot be treated to be novated by Assignment Agreement. The Corporate Debtor had paid Rs.64 Crores in respect of the scheduled land to the Appellants which have not been returned by the Appellants to the corporate debtor. The Resolution Plan in respect of Corporate Debtor has already been approved by the CoC and is pending approval before the Adjudicating Authority. On accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are the questions which arise for consideration in these Appeals:- (I) Whether the Adjudicating Authority had no jurisdiction to enter into issue as to whether the subject land is asset of the corporate debtor and for decision of the question, the parties were required to be relegated to the Competent Civil Court having jurisdiction? (II) Whether proceedings conducted by Sole Arbitrator and the orders passed by the Sole Arbitrator dated 27.05.2014 and 15.07.2015 amounts to arbitral award under the Arbitration & Conciliation Act, 1996 determining the rights of both the parties so as to bind the parties in any subsequent proceedings? (III) Whether the IRP/ RP could or could not have included the subject land in the Information Memorandum/ CIRP process of the corporate debtor by virtue of Section 18(1)(f) explanation? (IV) Whether Adjudicating Authority erred in not allowing the IA No.4648 of 2020 as prayed by the Appellant? (V) Whether the Adjudicating Authority committed error in allowing the IA No.58 of 2023 filed by the SRA? 10. Before we come to the questions as noted above, we need to notice certain details of Collaboration Agreement dated 05.07.2008, Addendum dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enses'. Under clause 3.3, developers agree to pay Rs.35,00,00,000/- towards interest free refundable security deposit to the first party (owners). Clause 3.3 is as follows:- "3.3 That the Developers agree to pay to the First Party the following sum of money as Refundable Security Deposit. a. Rs.35,00,00,000/-(Rupees Thirty live Crores only) towards interest free Refundable Security Deposit. b. 37% of the Sale Proceeds of the Said Project, net of marketing expenses. However, it is agreed that the above Security Deposit @ 5% of the First Party's share shall be recovered from the Sale Proceeds till Rs. 35.00 Crores of security Deposit is cleared." 13. Clause 3.4 contained the manner of deposit of refundable deposit by the Developers. Clause 6 dealt with 'Term & Termination'. Clause 6 of the Collaboration Agreement is as follows:- "6. TERM & TERMINATION This Agreement may be terminated on the happening of any of the following events: a) By Mutual consent of the First Party and the Developers by execution of written document duly signed by authorised representatives of both parties: b) Either Party becomes suspended or ineligible for participating in the Project antic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t party or his successors or legal heirs." 14. Clause 8 dealt with the 'Dispute Resolution'. Clause 9.2 dealt with the assignment in following manner:- "9.2 Either party shall not assign or transfer its rights and obligations under this Agreement without the prior written consent of the Other Party." 15. An Addendum (Supplementary) to Collaboration Agreement dated 05.07.2008 was executed between the parties on 28.10.2009 for certain changes in the Collaboration Agreement with regard to share of the owners and developers and certain provisions with regard to payment of Refundable Security Deposit. As per Addendum, owners' share was determined as 29.5% and developers share was provided for 70.5%. Refundable Security Deposit was changed from Rs.35,00,00,000/- to Rs.25,00,00,000/-. 16. An Assignment Agreement was executed on 25.01.2010 between 'M/s. Era Landmarks Ltd.'- First Party, 'M/s. Parinda Buildcon Private Limited', a subsidiary of 'M/s. Era Landmarks Ltd.' as 'Second Party' and Owners as 'Third Party'. Agreement provided that the First Party has assigned all its rights, duties and obligations under the Agreement to and in favour of the Second Party. It is useful to notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the subject land is asset of the corporate debtor or the parties were required to be relegated to the Competent Civil Court having jurisdiction. 20. The Information Memorandum which was prepared by the Resolution Professional reflected the subject land as a land in which the Corporate Debtor has development rights by virtue of Collaboration Agreement dated 05.07.2008. The Assets of a corporate debtor are foundation for any CIRP process. All subsequent acts including inviting EoI, Resolution Plan are based on asset which is claimed as asset of the Corporate Debtor. In the CIRP process of a Corporate Debtor, determination of the assets, preparation of Information Memorandum is a solemn duty of the Resolution Professional. Under Section 29 of the IBC, Information Memorandum is to be prepared for being used for CIRP process by the Resolution Professional. 21. The Resolution Professional is also obliged to obtain documents and details of the assets from personnel of the corporate debtor. Regulation 3A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 enjoin the Resolution Professional to take into custody th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the expression under Section 3(27) IBC. At the cost of repetition, it must be recapitulated that the definition of the expression "property" under Section 3(27) includes "every description of interest, including present or future or vested or contingent interest arising out of or incidental to property". Since the expression "asset" in common parlance denotes "property of any kind", the bundle of rights that the corporate debtor has over the property in question would constitute "asset" within the meaning of Section 18(1)(f) and Section 25(2)(a) IBC." 23. In the very same judgment of "Victory Iron Works Ltd." (supra), one of the questions was as to whether NCLT and NCLAT had jurisdiction in the facts of the said case. In the above case, the Corporate Debtor- Avani Towers Pvt. Ltd. held Joint Development Agreement in respect of property in question. In paragraph 3 of the judgment, parties to the litigation has been noticed. The Resolution Professional has filed an application before the Adjudicating Authority seeking direction to M/s. Energy Properties Pvt. Ltd. & Others not to obstruct the sole and exclusive possession of the property. The above facts have been noted in parag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld mining lease under MMDR Act, 1957. The proposal for deemed extension of the lease was rejected by the Government of Karnataka. In the above facts, against the order of the NCLT, Chennai allowing the prayers of Resolution Professional, Government of Karnataka filed a W.P. in the High Court of Karnataka where interim order was passed staying the operations and directions of the NCLT. The Embassy Property has filed the appeal challenging the interim order of the High Court. In the above reference, the issue of jurisdiction of the NCLT came for consideration. In the above case, following was laid down by the Hon'ble Supreme Court in paragraphs 37, 40 and 41:- "37. From a combined reading of sub-section (4) and sub-section (2) of Section 60 with Section 179, it is clear that none of them hold the key to the question as to whether NCLT would have jurisdiction over a decision taken by the Government under the provisions of the MMDR Act, 1957 and the Rules issued thereunder. The only provision which can probably throw light on this question would be sub-section (5) of Section 60, as it speaks about the jurisdiction of the NCLT. Clause (c) of sub-section (5) of Section 60 is very broad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rast to the language employed in Section 20. Section 18 speaks about the duties of the interim resolution professional and Section 25 speaks about the duties of resolution professional. These two provisions use the word "assets", while Section 20(1) uses the word "property" together with the word "value". Sections 18 and 25 do not use the expression "property". Another important aspect is that under Section 25(2)(b) of the IBC, 2016, the resolution professional is obliged to represent and act on behalf of the corporate debtor with third parties and exercise rights for the benefit of the corporate debtor in judicial, quasi-judicial and arbitration proceedings. Sections 25(1) and 25(2)(b) reads as follows: "25. Duties of resolution professional.-(1) It shall be the duty of the resolution professional to preserve and protect the assets of the corporate debtor, including the continued business operations of the corporate debtor. (2) For the purposes of sub-section (1), the resolution professional shall undertake the following actions: (a) *** (b) represent and act on behalf of the corporate debtor with third parties, exercise rights for the benefit of the corporate debtor in ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the validity of the Collaboration Agreement, the Assignment Agreement and the Legal Notices given by the Applicants and also as to whether the right, title, interest and possession over the Scheduled "Properties have been transferred to the Corporate Debtor and to the Parinda (PBPL) by virtue of the said Agreement and the fact that the Ld. Arbitrator had framed several issues concerning the rights of the parties. We are therefore, of the view that such issues involving disputed questions of facts cannot be determined in a summary proceeding under the IBC and have to be determined by a Competent Civil Court having jurisdiction after recording evidence." 29. The question as to whether the assets which are included in the Information Memorandum are the assets of the corporate debtor is foundation of entire CIRP process. When the inclusion of the said asset is questioned before the NCLT by the Appellant, Adjudicating Authority does not lack jurisdiction in entering into question and deciding as to whether assets are part of the CIRP or it should be excluded. We, thus, are of the view that the above question could be determined by the Adjudicating Authority and parties need not hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement of claim before the Sole Arbitrator claiming their rights on the basis of Collaboration Agreement dated 05.07.2008, Addendum dated 28.10.2009 and the Assignment Agreement dated 25.01.2010. Claimant also pleaded the payments made to the HUDCO as well as amount paid to the owners as per the Collaboration Agreement. In the claim petition, amount of Rs.64,04,81,076/- was claimed. Appellant has prayed in the claim petition for declaration of the Collaboration Agreement, Addendum, General Power of Attorney and Assignment Agreement as legally valid and subsisting. The owners filed their objections to the claim petition. One of the questions which came for consideration before the arbitrator was as to whether the document dated 25.01.2010 executed by the 1st Claimant as an Assignment Agreement in favour of 2nd Claimant is required to be stamped with the specified stamp duty under the provisions of Karnataka Stamp Act, 1957. In the said order, the questions were framed by the arbitrator in paragraph 7 which is as follows:- "7. From the above arguments of the learned counsel for the parties following points arises for the Tribunal's consideration: (a) Is 'Assignment Agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication may kindly be allowed as prayed for." 35. The Sole Arbitrator on 02.01.2015 considered the application. The prayers of the claimants to take back the document and the prayer that the proceedings of impounding of the document be dropped, was rejected. In paragraph 16, following was held:- "16. For the reasons stated hereinabove, the prayer of the claimant to take back the document in question, as also the prayer that the proceedings of impounding of the document in question be dropped, is rejected." 36. In proceeding dated 08.05.2015, the Tribunal allowed the prayer to delete applicant no.2 from the array of the parties which was noticed in paragraph 3 of the proceeding in following words:- "3. The learned counsel for the respondent submitted that since the first applicant itself is seeking to delete applicant No.2 in the claim petition, he has no objection for the same. Hence, prayer granted. Applicant No.2 is deleted from the array of parties. The sole claimant to the claim petition now to amend the cause title of the claim petition accordingly. Application allowed accordingly to that extent." 37. Now we come to the order dated 15.07.2015 which was passed by the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited arid Parinda Build Con Pvt Ltd before this Tribunal, is terminated for the reasons mentioned herein above." 39. The proceedings in claim petition filed by M/s. Era Landmarks Ltd. was thus, terminated by order dated 15.07.2015. 40. It is relevant to notice that against the order dated 15.07.2015, M.A. No.37 of 2015 was filed by both the Claimants before the Addl. City Civil & Sessions Judge, Bengaluru. An application being IA No.3 was filed objecting to maintainability of the M.A. After hearing the parties, Ld. Addl. City Civil & Sessions Judge took the view that the order dated 15.07.2015 is an order passed under Section 32(2)(c) which finding has been returned. Paragraphs 17 and 18 of the order are as follows:- "17. As could be seen from the cause-title of order, dated 15.07.2015 passed by the Hon'ble Sole Arbitrator, it is under Section 23(3) of the Arbitration and Conciliation Act, 1996. It appears the Provision is wrongly quoted. Because, on reading of the entire order passed by the Hon'ble Sole Arbitrator, it is an order under Section 32(c) of the Arbitration and Conciliation Act, Section 32 reads like this: "Termination of proceedings.-(1) The arbitral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... geable and cannot be questioned under Section 34 of the Arbitration and Conciliation Act. In a case decided by the Bombay High Court in Anuptech Equipments. Private Ltd., Vs. Ganpati Co-Operative Housing Society Ltd., Mumbai and others reported in 1999 (2) Maharashtra Law Journal, it field as below: "10: ..................What that means is that the expression order and award are distinct and different. One is termination of proceedings without deciding the merits of the matter, the other is termination on merits. Therefore, It is clear that looking at the Act itself there is no provision to challenge certain orders or decisions." The High Court of Calcutta in the case of NPR Projects Pvt. Ltd. and Another. Vs. Hirak Mukhopadhyay and Another has also taken a view, which is as follows:- "61. The remedies that are available may be noticed now. An arbitral award, be it final or interim, may be challenged in an application under Section 34 of the Act, Section 37 provides for appeal against orders of the arbitral tribunal, but except for those mentioned therein other orders passed by it are not appealable." 5. In view of the proposition laid down in the above two decisions, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of arbitral awards.- Subject to this Part an arbitral award shall be final and binding on the parties and persons claiming under them respectively." 47. Section 36 deals with 'enforcement' and Section 37 deals with 'appealable orders'. When we look into Section 32, the statutory scheme provides that arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal under sub-section (2). Thus, expressions 'final arbitral award' and 'an order of the arbitral tribunal under sub-section (2)' are two distinct natures of orders contemplated by sub- section (1) of Section 32. Both the expressions have been used for two separate natures of orders. Thus, an arbitral award and an order of the arbitral tribunal under sub-section (2) of Section 32 are two different natures of orders and have different consequences. When we look into Section 34, it is clear that recourse is provided only against arbitral award under Section 34. Thus, an application under Section 34 is maintainable only against an arbitral award. 48. Now we come to Section 35 which provides for 'finality of arbitral awards'. The statutory scheme under Section 35 thus, is clear tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the arbitrator is not an award and no Misc. Case lies u/s 34 of Arbitration and Conciliation Act. Accordingly, this Misc. Case is not maintainable at all." 50. Calcutta High Court also noticed Section 25 as well as Section 32 of the Act, 1996 and in paragraph 8 of the judgment has observed "an order under Section 32(2) would not be an award". Paragraph 8 of the judgment is as follows:- "8. Section 32 provides that the Arbitral proceedings are to be terminated by the final award or by an order of the Arbitral Tribunal, under sub-section 2 of Section 32. An order under sub-section 2 of Section 32 might be issued in the circumstances specified in Clauses (a) to (c) of Sub-section (2) of Section 32, that is, where the claimant withdraws his claim, or where the parties agree on the termination of the proceedings, or where the Arbitral Tribunal finds that the continuation of the proceedings has, for any other reason, become unnecessary or impossible. An order under Section 32(2) would not be an award." 51. Counsel for the Appellant has relied on paragraphs 9 to 14 of the judgment which is as follows:- "9. Once the arbitral proceedings are terminated, whether by a final award, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proceedings is a final award which can only challenged by way of an application for setting aside under Section 34 Sub-section (2) of the 1996 Act. Once the arbitral proceedings are terminated, the claimant cannot re-agitate the same claim by initiation of fresh proceedings since the claim would be hit by principles of constructive resjudicata." 52. When we look into the above judgment, the Calcutta High Court itself has carved an exception to an order passed under Section 32(2) from being treated an award which is clear from what has been held in paragraphs 8 and 10 of the judgment as noted above. Paragraphs 8 and 10 of the judgment are as follows: "8. Section 32 provides that the Arbitral proceedings are to be terminated by the final award or by an order of the Arbitral Tribunal, under sub-section 2 of Section 32. An order under sub-section 2 of Section 32 might be issued in the circumstances specified in Clauses (a) to (c) of Sub-section (2) of Section 32, that is, where the claimant withdraws his claim, or where the parties agree on the termination of the proceedings, or where the Arbitral Tribunal finds that the continuation of the proceedings has, for any other reason, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 56. Counsel for the Respondents has placed reliance on a subsequent judgment of the Delhi High Court in "PCL Suncon vs. National Highway Authority of India- 2021 SCC OnLine Del 313". The order under challenge before the Delhi High Court was an order dated 20.04.2020 terminating the arbitral proceedings under Section 32(2)(c) of the Arbitration & Conciliation Act, 1996. In the above case, the question arose as to whether order constitutes an award. After considering the submissions of the parties, Delhi High Court laid down following in paragraphs 23 and 24:- "23. The first and foremost question to be addressed is whether the impugned order constitutes an award. As noted above, the Arbitrators had, by the impugned order, terminated the arbitral proceedings under Section 32(2)(c) of the A&C Act on account of failure on the part of the petitioner to nominate an arbitrator to fill the vacancy resulting from the resignation of Justice E. Padmanabhan (Retd.). Recourse to a court against an award is available only under Section 34 of the A&C Act. This is clear from the plain language of sub-section (1) of Section 34 of the A&C Act which reads as : -(1) Recourse to a Court against an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d within the meaning of Arbitration & Conciliation Act, 1996 so as to make it binding on the parties under Section 35 of the Act. Thus, in view of the fact that the Sole Arbitrator terminated the arbitration proceedings under Section 33(2)(c) by order dated 15.07.2015, the order dated 15.07.2015 cannot be held to be an award within the meaning of Arbitration & Conciliation Act, 1996. 60. The answer of Question No.II is:- The proceedings conducted by the Sole Arbitrator and the orders passed by the Sole Arbitrator dated 27.05.2014 and 15.07.2015 does not amount to an arbitral award under the Arbitration & Conciliation Act, 1996 determining the rights of both the parties so as to bind both the parties in any subsequent proceedings. QUESTION NO.(III) & (IV) 61. Both the questions being inter-related are taken together. 62. The CIRP against the Corporate Debtor commenced by order dated 05.12.2018 passed by the Adjudicating Authority. The Respondent No.1 herein was appointed as IRP who was subsequently confirmed as RP. The RP has made public announcement in Form A on 07.12.2018. The RP came to know about the public notice dated 07.08.2020 issued by M/s. Brigade Enterprises Ltd. int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtue of above statutory scheme. 66. The present is a case where corporate debtor is not claiming any ownership rights over the subject land. Corporate debtor is claiming development rights and the ownership of the Appellants is not even denied by the Resolution Professional. Reply to the IA was filed by the Resolution Professional. In the reply, Resolution Professional has pleaded that the Resolution Professional has rightly included the project in the Information Memorandum as besides receiving the compensation due and payable by the Applicants in terms of clause 6, the Resolution Professional is also required to deal with the claims of Real Estate Allottee pertaining to said project. 67. We have already noticed the judgment of the Hon'ble Supreme Court in Victory Iron (supra) where it was held that the development rights is a property within the meaning of Section 3(27) and the Resolution Professional has every right to move to the NCLT to protect for the interest of the corporate debtor in the land where corporate debtor claims development rights. 68. We may also need to notice few more clauses of the Collaboration Agreement between the parties. Clause 9.2 of the Collaboratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor is not an award within the meaning of Arbitration & Conciliation Act, 1996. 70. We may also refer to the judgment of this Tribunal in "Nilesh Sharma, Resolution Professional- Today Homes and Infrastructure Pvt. Ltd. vs. Mordhwaj Singh & Ors.- Company Appeal (AT) (Ins.) No. 1691 of 2023" which was also a case where owners of the land have filed an application for excluding the assets which was owned by the owners. There was development agreement between the developers and the owners with respective shares to the parties. License was obtained by developers and group housing colony was constructed. There was also a consent award dated 05.09.2009 between the parties and award by the Sole Arbitrator dated 09.12.2017 where certain directions were issued to claimant as well as to the owners. Owners, after the consent award, by notice have revoked the Power of Attorney. The CIRP commenced on 31.10.2019. Resolution Professional took possession of the project who was dispossessed subsequently by the owners an IA was filed by the Resolution Professional in which under interim order Resolution Professional was again put back in possession. Owners filed an IA seeking direction to the Resol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r stakeholder in the resolution of the Corporate Debtor and since the Resolution Plan has been approved by the CoC in its 27th meeting dated 15.09.2022 by 82.66% voting share in respect of the CIRP of the Corporate Debtor, we deem it appropriate to allow the intervention application and permit the applicant to intervene in the main application and make submissions." 73. Intervener who has filed an application for intervention being SRA, we see that the Adjudicating Authority did not commit any error in allowing Intervention Petition filed by Art Construction Pvt. Ltd. Question No. (V) is answered in following manner:- Adjudicating Authority did not commit any error in allowing IA No.58 of 2023 filed by the SRA. 74. In view of the foregoing discussions and our conclusions, we uphold the order dated 30.04.2024 passed in IA No.58 of 2023. The order dated 30.04.2024 passed by the Adjudicating Authority in IA No.4648 of 2020 insofar as it does not allow the prayers made in IA No.4648 of 2020 are upheld. We have already held that the questions raised in the applications IA No.4648 of 2020 were not required to be referred to for determination by a Competent Civil Court having jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
