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TMI Blog2024 (11) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties were required to be relegated to the Competent Civil Court having jurisdiction? - HELD THAT:- Whether an asset is required to be reflected in the Information Memorandum or the asset belong to the Corporate Debtor are the question which arise out of or in relation to the insolvency resolution process. The present is a case where the Corporate Debtor has claimed development rights in the land. It is no more res-integra that the development rights are property within the meaning of Section 3(27) of the IBC. We may refer to the judgment of the Hon ble Supreme Court in Victory Iron Works Ltd. vs. Jitendra Lohia Anr. [ 2023 (3) TMI 699 - SUPREME COURT ] where the Hon ble Supreme Court had held that the development rights created in favour of the corporate debtor constitute property within the meaning of Section 3(27) of the IBC. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e claims of Real Estate Allottee pertaining to said project. IRP/RP has rightly included the subject land in the Information Memorandum/ CIRP and he was not precluded by virtue of Section 18(1)(f) explanation from asserting development rights in the subject land - Adjudicating Authority did not commit any error in not allowing IA No.4648 of 2020 which prayed for exclusion of subject land from the Resolution Plan/CIRP of the corporate debtor. Whether the Adjudicating Authority committed error in allowing the IA No.58 of 2023 filed by the SRA? - HELD THAT:- The Adjudicating Authority did not commit any error in allowing Intervention Petition filed by Art Construction Pvt. Ltd. The order dated 30.04.2024 passed in IA No.58 of 2023 upheld - appeal dismissed. - [Justice Ashok Bhushan] Chairperson And [Barun Mitra] Member (Technical) For the Appellants: Mr. Maninder Singh Sr. Advocate with Mr. Zoheb Hussain, Mr. Udai Khanna, Mr. Vivek Gurnani, Mr. Pranjal 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/ R3. Mr. Krishnendu Datta Sr. Advocate with Ms. Nishtha K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. M/s. Era Landmarks (India) Ltd. was referred to as Developer in the Collaboration Agreement who undertook to discharge the loan of HUDCO and obtain the building plan of the project land and develop the project. The developer undertook to pay Rs.35 Crores towards interest free Refundable Security Deposit. The developer was to market the project. The agreement captured the rights and obligations of the developers. Rights and obligations of the first party i.e. owner. First party has the rights to 37% of the gross sale proceeds received from sale of the project. By subsequent agreement dated 28.10.2009 executed in form of addendum, certain terms and conditions of the Collaboration Agreement dated 05.07.2008 was modified by the parties. The document was referred as Addendum (Supplementary) to Collaboration Agreement dated 05.07.2008 . The owners have also executed a General Power of Attorney dated 05.07.2008 in favour of the developer. 2.2. On 25.01.2010, an Assignment Agreement was entered into by the Developer with its one of the subsidiaries namely Parinda Buildcon Private Limited assigning rights of developer to develop and carry on the project. The developers in the Assignmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings. Against the order dated 15.07.2015 passed by the Sole Arbitrator, an application under Section 34 of the Arbitration Conciliation Act, 1996 was filed by the developer- M/s. Era Landmarks Ltd. which came to be dismissed by the Addl. City Civil Sessions Judge, Bengaluru on 12.10.2018. M.F.A. No. 10068 of 2018 was filed by both the Claimants before the High Court of Karnataka at Bengaluru against the order dated 12.10.2018 passed by the Addl. City Civil Sessions Judge, Bengaluru. An order was passed on 05.12.2018 by the Adjudicating Authority in an application under Section 7 of the IBC filed by Edelweiss Asset Reconstruction Company Ltd. initiating the CIRP against M/s. Adel Landmarks Ltd. (M/s. Era Landmarks Ltd. was subsequently re-named as M/s. Adel Landmarks Ltd., the Corporate Debtor herein). On 25.06.2019, High Court of Karnataka at Bengaluru was pleased to dismiss M.F.A No.10068 of 2018 holding that Arbitral Award dated 15.07.2015 was passed under Section 32(2) (c) of the Arbitration Conciliation Act, 1996 and hence could not have been subjected to challenge under Section 34 of the Arbitration Conciliation Act, 1996. A Public Notice was published on 07.08.2020 in Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals have been filed. 3. We have heard Shri Maninder Singh, Learned Senior Counsel with Shri Zoheb Hussain for the Appellants, Shri Arijit Prasad, Learned Senior Counsel with Shri Sanjay Bhatt for the Resolution Professional, Shri Krishnendu Datta, Learned Senior Counsel for the SRA and Shri Abhijeet Sinha, Learned Senior Counsel for the Intervenor- Parinda Buildcon Private Limited . 4. Learned Counsel for the Appellant challenging the order dated 30.04.2024 disposing of his IA No.4648 of 2020 submits that the Adjudicating Authority committed error in deciding the application, the Corporate Debtor had no rights in the subject land and IRP could not have taken control and custody of the subject assets. It is submitted that the ownership of the Appellant over the subject land is undisputed. Subject land was not in possession with the corporate debtor at the time of initiation of the CIRP. In any view of the matter, assets which are owned by third party and are in possession of the corporate debtor are excluded by virtue of Section 18(1)(f) explanation of the IBC. The corporate debtor had lost all of its rights and obligations qua the scheduled properties under the agreements dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which termination has attained finality. In view of the Award given by the Sole Arbitrator, after termination of the arbitration proceedings, the termination notice could not have been re-agitated. No steps were taken by the corporate debtor or the Resolution Professional to assail the termination notice in any proceedings. Moratorium under Section 14 of the IBC is not applicable with regard to assets which are not the assets of the corporate debtor and belong to third party. An agreement to arbitrate excludes and ousts the jurisdiction of Civil Courts and, therefore, the NCLT could not have refused to exclude the subject properties from the CIRP when the issues stand decided by the Arbitrator and have attained finality. The termination of the Collaboration Agreement was much prior in time and unconnected with the CIRP proceedings, the scheduled properties could not be included as an asset of the corporate debtor. The Resolution Professional s duty and power to include any asset in the Information Memorandum is subject to the determination of ownership by a Court or Authority in terms of Section 18(1)(f)(vi) of the Code. The findings of the Arbitral Tribunal are clearly determina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Arbitrator was rejected vide order dated 08.09.2016. On account of termination of the arbitral proceedings, no determination of the rights and obligations of the parties was made by the Ld. Arbitrator. The order terminating the arbitration proceedings did not result in any award as contended by the Appellants. Challenge to the order dated 15.07.2015 was repelled by the District Court on technical ground of having been termed the petition as an appeal instead of arbitration suit. Challenge to the order of the District Court was also rejected by the High Court on 25.06.2019 on technical ground without deciding the issues on merits. It is submitted that prior to passing of the order by the Karnataka High Court on 25.06.2019, CIRP against the corporate debtor has already commenced on 05.12.2018. The corporate debtor having development rights in the subject land, Resolution Professional has rightly included the same in the Information Memorandum. A Public Notice issued on 07.08.2020 by one M/s. Brigade Enterprises Limited informing its intention to enter into a joint development agreement with subject land was objected by filing letter dated 19.08.2020 asserting the right of the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assets of the corporate debtor and therefore, the scheduled property is rightly included in the Information Memorandum. Adjudicating Authority has rightly disposed of the IA No.4648 of 2020 on the ground of jurisdiction. If the appeal filed by the Appellant is allowed, it would result into unjust enrichment. Corporate Debtor had made total investment of Rs.64 Crores towards the development of the project qua the scheduled property including payment of loans taken by the Appellants from HUDCO. Clause 6 of the Collaboration Agreement provides for consequences as agreed between the parties in the event of termination of the Collaboration Agreement and till date the Appellants have not refunded the amount to the Corporate Debtor. 7. Learned Counsel for the Intervenor also supported the submissions of the Counsel for the Resolution Professional and the SRA. It is submitted that the intervenor is wholly owned subsidiary of the corporate debtor and by Assignment Agreement dated 25.01.2010, the Collaboration Agreement did not come to an end. The Corporate Debtor was liable to carry out all obligations in event assignee failed to fulfil the obligation. 8. Learned Counsel for the parties hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs have the exclusive marketing rights of the said project and the first party and the developers shall share the expenses involved in marketing of the said project in the agreed ratio of 37:63. As per clause 2.8, all expenses on development of the project land, the construction thereon and provision of infrastructure facilities and services in relation to the same, except expenses incurred on marketing of the project, shall be incurred and borne by the Developers. The loan of HUDCO was to be cleared by the developers. Clause 2.14 stated that the owners are in possession and enjoyment of the schedule property. The owners authorise the developers for the purpose of development to enter upon the schedule property and develop the same. Clause 2.14 is as follows:- 2.14 The Owners are in possession and enjoyment of the Schedule Property. The Owners hereby authorise the Developers for the purpose of development, to enter upon the Schedule Property and develop the same, however the Authority so granted does not in any manner be construed as delivery of possession by the Owners in part performance of this Collaboration Agreement under Sec. 53(A) of the Transfer of Property Act, or under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction of assets shall be taken into account thro' an independent valuer and the agreed value shall be made good by the First Party from the proceeds of the Schedule Property or from his own source within a period of 2 years of such termination. The amounts payable to the Developer on such account shall not carry interest for a period of 2 years. Any delay in paying off the dues thus ascertained, by the First Party to the Second Party, beyond a period of 2 years shall attract interest @13% p.a. Although, the Developer has no lien on the Schedule Property against investments made, both the parties agree to respect this arrangement in the best interests of salvaging developers investment. c. The Developer shall execute such documents with the First party in order to assist the First party to put the subject party to further commercial use. Termination on account of material breach by the owner or due to his inability to carryon business: a. The Developer can cancel the collaboration agreement and pursue for refund of the initial deposit of Rs. 35.0 crores through a mutually agreed arrangement with the First party. b. The Developer, having invested further monies into the project. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty intis performance of the obligations mentioned in The Agreement and agrees to perform its obligations detailed in The agreement as if the assignment has not been effected 3. This assignment agreement shall form part of The Agreement and shall be read together with The Agreement. All the terms and conditions of The agreement shall continue without any change. 4. The First party has furnished approvals from its board of Directors in the form of a Board resolution passed in the board meeting held on 16.01.2010 at the registered office of the Company. 17. The owners had issued a legal notices dated 17.02.2012 and 22.02.2012 addressed to M/s. Era Land Marks Ltd. and Parinda Buildcon Pvt. Ltd. terminating the Collaboration Agreement, Addendum to Collaboration Agreement, Assignment Agreement as well as General Power of Attorney alleging breaches on the part of the M/s. Era Land Marks Ltd. as well as Parinda Buildcon Pvt. Ltd. . It was after aforesaid legal notices M/s. Era Land Marks Ltd. and Parinda Buildcon Pvt. Ltd. initiated arbitration proceedings, details of which we shall notice hereinafter. 18. Now we proceed to consider the questions as noted above. QUESTION No.(I) 19. The fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Debtor are the question which arise out of or in relation to the insolvency resolution process. The present is a case where the Corporate Debtor has claimed development rights in the land. It is no more res-integra that the development rights are property within the meaning of Section 3(27) of the IBC. We may refer to the judgment of the Hon ble Supreme Court in Victory Iron Works Ltd. vs. Jitendra Lohia Anr.- (2023) 7 SCC 227 where the Hon ble Supreme Court had held that the development rights created in favour of the corporate debtor constitute property within the meaning of Section 3(27) of the IBC. In paragraph 38 of the judgment, following was laid down:- 38. From the sequence of events narrated above and the terms and conditions contained in the agreements entered into by the parties, it is more clear than a crystal that a bundle of rights and interests were created in favour of the corporate debtor, over the immovable property in question. The creation of these bundle of rights and interests was actually for a valid consideration. But for the payment of such consideration, Energy Properties would not even have become the owner of the property in dispute. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to the jurisdiction of the authorities under the Code. 25. After considering the submissions of the parties in paragraph 53, the Hon ble Supreme Court upheld the decision of the NCLT and NCLAT regarding exercise of jurisdiction for protection of the property of the corporate debtor. The above judgment clearly laid down that insofar as the protection of assets of the corporate debtor is concerned, the NCLT and NCLAT does not lack jurisdiction. Following was observed in paragraph 53:- 53. Therefore, NCLT as well as NCLAT [Victory Iron Works Ltd. v. Jitendra Lohia, 2021 SCC OnLine NCLAT 128] were right in holding that the possession of the corporate debtor, of the property needs to be protected. This is why a direction under Regulation 30 had been issued to the local district administration. 26. Counsel for the Appellant relied on the judgment of the Hon ble Supreme Court in Embassy Property Developments (P) Ltd. vs. State of Karnataka- (2020) 13 SCC 308 . The above was a case where NCLT Chennai has passed an order on an application filed by the Resolution Professional for setting aside the order of rejection passed by the Government of Karnataka and seeking direction to Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax Act had attained finality, fastening a liability upon the corporate debtor, since, in such cases, the dues payable to the Government would come within the meaning of the expression operational debt under Section 5(21), making the Government an operational creditor in terms of Section 5(20). The moment the dues to the Government are crystallised and what remains is only payment, the claim of the Government will have to be adjudicated and paid only in a manner prescribed in the resolution plan as approved by the adjudicating authority, namely, the NCLT.] 40. If NCLT has been conferred with jurisdiction to decide all types of claims to property, of the corporate debtor, Section 18(1)(f)(vi) would not have made the task of the interim resolution professional in taking control and custody of an asset over which the corporate debtor has ownership rights, subject to the determination of ownership by a court or other authority. In fact an asset owned by a third party, but which is in the possession of the corporate debtor under contractual arrangements, is specifically kept out of the definition of the term assets under the Explanation to Section 18. This assumes significance i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solution Professional cannot short-circuit the same. It was held that where corporate debtor has to exercise a right that falls outside the purview of the IBC especially in the realm of the public law, Resolution Professional cannot take a bypass and go before NCLT. The judgment of the Hon ble Supreme Court in Embassy Property Developments (P) Ltd. is clearly distinguishable and not applicable in the facts of the present case. 28. In the present case, in the Information Memorandum, Resolution Professional has included the subject land as asset of the corporate debtor in which corporate debtor claimed development rights. An IA was filed by the owners, Appellants herein being IA No.4648 of 2020 for excluding the assets from the CIRP of the Corporate Debtor, hence, in the above background, we are of the view that the Adjudicating Authority had jurisdiction to examine the application on merits and take a decision as to whether the subject land can be treated to be asset of the corporate debtor or not. Adjudicating Authority in paragraph 47 has made following observations: - 47. Further, it will not be out of place to mention that the disputes that have arisen in this case are complex i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant has been refuted by the Counsel for the Resolution Professional/ Corporate Debtor contending that the order dated 15.07.2015 passed by the Sole Arbitrator terminating the proceedings is not an arbitral award so as to bind the parties. It is submitted that the arbitration proceedings were terminated which order is referable to sub-section (2) clause (c) of Section 33 of the Arbitration Conciliation Act, 1996. It is submitted that there being no award by the Sole Arbitrator, there is no question of finality between the parties regarding the rights of the parties on the subject land. 31. Before we proceed, we need to notice the proceedings before the Sole Arbitrator and orders passed therein to come to a conclusion as to whether the orders passed by the Sole Arbitrator is an award within the meaning of Arbitration Conciliation Act, 1996 and have finality between the parties. As noted above, an application filed by M/s. Era Landmarks Ltd. and Parinda Buildcon Private Limited before the High Court of Karnataka, Bangalore under Section 11 of the Arbitration Conciliation Act, 1996 in which application by an order dated 20.04.2012, Sole Arbitrator was appointed. Both the Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rects the claimants who are in possession of the same to produce the said document before this Tribunal within 30 days from the date of receipt of this order, for the purpose of impounding the said document and taking necessary steps for recovery of the stamp duty and penalty due. 34. The Claimant did not produce the original assignment agreement dated 25.01.2010 and had filed an application for amending the statement of claim dated 16.07.2012. In the application which was filed by the Claimant, following prayers were made:- (i) Permit the applicant/claimant Adel Landmarks Limited to amend the claim petition by dropping the 2nd claimant and by withdrawing the reliance/reference to the assignment deed dated January 25, 2010; (ii) proceed with the arbitration proceedings by taking the applicant to be the sole claimant and the arbitration proceedings and the claims being arising only out of the collaboration agreement dated July 5, 2008 and the addendum thereto dated October 28, 2009;. (iii) grant any other relief, as this Hon'ble Tribunal may deem fit in the facts and circumstances of the present case. It is still further respectfully prayed that the application may kindly be all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and obligations accrued by it under the collaboration agreement which is now transferred in favour of 2nd claimant (since deleted) by the assignment agreement, the Tribunal is of the opinion, the claim petition tiled before this Tribunal jointly by the 1st and 2nd claimants, cannot be continued any further, because 1st claimant has lost all its rights to pursue this petition, by virtue of transfer of rights under assignment agreement and the 2nd claimant (since deleted) cannot now pursue this claim petition, because it is no more a party to this petition. Hence, since there being no claimants eligible to pursue this claim petition, the undersigned is of the opinion that the claim petition has become infructuous, consequently, this arbitration proceedings is liable to be terminated, 31. There is a counter claim petition filed by the respondents before this Tribunal, which the learned counsel for the respondents contends that the respondents are legally entitled to pursue its claim independent of the main claim petition. This will be considered separately. 32. So far as proceedings in claim petition filed by M/s. Era Land Marks. Limited arid Parinda Build Con Pvt Ltd before this Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder passed by the Hon'ble Tribunal is under Section 32(2)(c) of the Arbitration and Conciliation Act 1996. 41. Ld. Addl. City Civil Sessions Judge passed following order dismissing the Appeal:- ORDER I.A.No.3 is allowed. The Appeal filed under Section 34 of the Arbitration and Conciliation Act is not maintainable. Consequently, the entire Appeal is dismissed with cost. 42. Against the order passed by the Trial Court, Misc. First Appeal No. 10068 of 2018 was filed by both the Claimants in the High Court of Karnataka at Bengaluru which also came to be dismissed by the judgment and order of the High Court dated 25.06.2019. High Court in the above judgment held that the order dated 15.07.2015 is an order under Section 32(2)(c) of the Arbitration Conciliation Act, 1996. In paragraphs 4 and 5, High Court held following:- 4. I have perused the entire impugned order. It can very well be said that the order passed by the Arbitral Tribunal. on 15.07.2015 amounts to an order passed according to Section 32 (2) (c) of the Arbitration and Conciliation Act. This kind of an order is not challengeable and cannot be questioned under Section 34 of the Arbitration and Conciliation Act. In a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the termination of the arbitral proceedings where (a) the claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognises a legitimate interest on his part in obtaining a final settlement of the dispute, (b) the parties agree on the termination of the proceedings, or (c) the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible. (3) Subject to section 33 and sub-section (4) of section 34, the mandate of the arbitral tribunal shall terminate with the termination of the arbitral proceedings. 45. Section 34 deals with application for setting aside arbitral awards . Section 34(1) provides as follows:- 34. Application for setting aside arbitral awards. (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub- section (2) and sub-section (3). 46. Section 35 deals with finality of arbitral awards which is as follows:- 35. Finality 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 dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitration should be kept on being delayed further. The act of sole arbitrator is a time- bound manner and nearly two years were passed from the date of appointment of the arbitrator but the proceeding did not progress at all and as such, the arbitration proceeding was terminated as per provision u/s 25(a) of the Arbitration and Conciliation Act, 1996. II) As per Section 34 of Arbitration and Conciliation Act, 1996, the order had passed by the arbitrator is not award at all. Moreover, the petitioner was given several opportunities to file his statement of claim and to proceed with the arbitration proceeding but the petitioner taking advantage of the contempt proceeding, took several attempts to conclude the proceeding and the proceeding was delayed due to Act of the petitioner. The arbitration proceeding is a time-bound factor. Therefore, in view of the above observation, I do not find any illegality or irregularity in the observation of the Ld. Arbitrator. Moreover, the order passed by 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 Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties agree on the termination of the proceedings or the tribunal finds the continuation of the proceedings has, for any reason, become unnecessary or impossible. 12. Termination of proceedings under Section 25(a) is a final decision which puts an end to the arbitral proceedings. The decision amounts to rejection of the claim, even though there is no adjudication on merits. It is, akin to dismissal of a suit on a technical ground, may be, non prosecution. 13. There is a difference between a decision which puts an end to the arbitral proceedings and a decision whereby the arbitrator withdraws from the proceedings. Where the arbitrator withdraws from the proceedings, a substitute arbitrator may be appointed in accordance with the procedure, applicable to the appointment of the arbitrator who is replaced, but where the arbitrator puts an end to the arbitral proceedings, the claimant cannot pursue his claim. 14. The decision of the arbitral tribunal to put an end to the 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-ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nction between an order and an award lies in the fact whether the decision of the arbitral tribunal affects the rights of the parties, concluding the dispute as to the specific issue, and has finality attached to the same. 26. In the present case, the impugned Award has resulted in termination of the arbitration proceedings and would bar the petitioner from re-agitating the same in any other proceedings. The said award, therefore, has finality attached to it and determines a vital right of the parties. 55. The order which was challenged was held to be award amenable to proceeding under Section 34 of the Arbitration Conciliation Act, 1996 which has been held in paragraph 29 of the judgment. The above case was not a case of termination of arbitration proceedings under Section 33(2) rather a case of rejecting an application for substitution of legal heirs. Thus, the issue which has arisen in the present case was neither considered nor decided. 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 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at an order, which terminates the arbitral proceedings as the Arbitral Tribunal finds it impossible or unnecessary to continue the arbitral proceedings, would not be an award. This is so because it does not answer any issue in dispute in arbitration between the parties; but is an expression of the decision of the Arbitral Tribunal not to proceed with the proceedings. 58. It is relevant to notice that both the cases relied by the Appellant i.e. Indian Trade Company and Joginder Singh Dahiya was also considered by the Delhi High Court and noticed in the judgment. 59. In view of the statutory scheme of the Arbitration Conciliation Act, 1996, as noted above and the fact that both City Civil Session Court Judge as well as High Court of Karnataka having held that the order dated 15.07.2015 passed by the Sole Arbitrator is an order under Section 33(2)(c), the order dated 15.07.2015 cannot be held to be arbitral award 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e development rights claimed by the corporate debtor is a property within the meaning of Section 3(27) and the RP has to include the assets in which the corporate debtor has development rights. 65. Shri Maninder Singh, Learned Senior Counsel for the Appellant relying on Section 18(1)(f) explanation submits that the IRP can take control and custody of only those assets over which the corporate debtor has ownership as recorded in the balance sheets. It is undisputed fact that the ownership rights in the subject land still vest with the Appellants. Counsel for the Appellant referring to explanation also submits that the assets which are owned by third party and in possession of the corporate debtor held under trust or under contractual agreement are excluded from the definition of asset. Hence, subject property which is owned by the Appellants cannot be taken into custody by the IRP by virtue 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the agreement, hence, the assignment is made in accordance with Clause 9.2 of the Collaboration Agreement. We have already extracted Clause 3 of the agreement which provided all the terms and conditions of the agreement shall continue without any change and it was further stated that the Assignment Agreement shall form part of the agreement and shall read together with the agreement. Assignment Agreement did not cancel the Collaboration Agreement and to be read as part of the Agreement. Agreement at very beginning has noticed that the First Party has resolved and decided to transfer all its rights, duties and obligations under the Agreement to the Second Party for operational convenience of implementing and marketing the project envisaged in the Agreement to which the second party has agreed. We have already held that the order dated 15.07.2015 passed by the Sole Arbitrator 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Authority did not commit any error in not allowing IA No.4648 of 2020 which prayed for exclusion of subject land from the Resolution Plan/CIRP of the corporate debtor. QUESTION NO. (V) 72. Question No.(V) relates to the order passed by the Adjudicating Authority dated 30.04.2024 passed in IA No.58 of 2023. We have noticed above that the Resolution Plan of M/s. Art Construction Pvt. Ltd. in the CIRP of the Corporate Debtor was approved by the CoC on 15.09.2022/ 06.12.2022 with majority vote of 82.66%. The Applicant- Art Construction Pvt. Ltd. who had filed an Intervention Petition was the SRA whose plan was approved by the CoC. Adjudicating Authority while deciding the Intervention Petition observed following in paragraph 3:- 3. Having regard to the fact that the present intervention has been filed by the M/s. Art Construction Pvt. Ltd., who is the major 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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