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TMI Blog2025 (1) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... as to distort the application and object of I B Code, 2016. The learned Adjudicating Authority, while considering the claim as it was raised by the Appellant, in the Application preferred being IA No. 545 / 2024, has also considered the Judgment rendered by the Hon ble Apex Court in the matters of Adani Power Limited V. Shapoorji Pallonji Co. Pvt. Ltd. Ors. [ 2023 (3) TMI 1555 - SC ORDER] wherein, the Hon ble Apex Court has observed that in the statute or the precedence of the Hon ble Apex Court or the NCLAT, there is no ambiguity as such, which reflects that once the plan is approved it is binding and it cannot be made a subject matter to be considered, analysed or interpreted before the Arbitration or for that matter before any proceedings and thus, it has opined that the claim even if allowed in favour of Shapoorji Pallonji Co. Pvt. Ltd., will have no bearing on the right and obligations of the Appellant, as against the Corporate Debtor, who would be bound by its own terms of contract with the Corporate Debtor, owing to the fact that the Appellant cannot be saddled with a new liability except which is mentioned in the Resolution Plan. In the absence of there being any challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m in a proceeding of the CIRP. 2. The brief facts that emerge for consideration in the instant Appeal are; M/s. Vikas Telecom Pvt. Limited, the Developer, appointed Synergy Development Services Pvt. Ltd., as the Project Management Consultant in a project called as Parcel 3A MLCP at Embassy Tech Village, Devarabisanahalli Village, Bangalore, vide work order dated 06.02.2019. Further, Vikas Telecom Pvt. Ltd. awarded a contract for the `engineering and build package work of the Project to the Corporate Debtor M/s. Katerra India Private Limited, as a Contractor of the Project. 3. The Vikas Telecom Pvt. Ltd., is said to have appointed the Appellant as a co-developer for the purposes for undertaking the development, operation and maintenance of several projects, including the said project at Embassy Tech Village. 4. For the purposes of guaranteeing execution of the awarded project, as per Schedule, the Financial Creditor namely `Yes bank , is said to have issued an unconditional Performance Bank Guarantee on behalf of the Corporate Debtor on 02.02.2021, to the tune of Rs.16.77 Crores in favour of the Appellant. Another Bank Guarantee being the second one was issued by the `Yes Bank , for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication i.e. IA No. 545 / 2024, before the learned NCLT, Bengaluru, on 20.06.2024, praying for issue of directions to clarify that his claims shall not be extinguished under the approved Resolution Plan. 11. The learned Adjudicating Authority, dismissed the said Application being IA No. 545 / 2024, holding the same to be barred by the ratio laid down by the Hon ble Apex Court as propounded in the recent Judgment of the Adani Power Limited. 12. The learned counsel for the Appellant had submitted, that the view taken by the learned Adjudicating Authority, while deciding the IA No. 545 / 2024 was that, owing to the fact that the sustainability of a counter claim was an issue, which was considered by the Principal Bench of NCLAT in CA (AT) (INS) No. 285 of 2018 Jharkand Bijli Vitran Nigam Ltd. V. IVRCL Ltd., wherein vide its Judgment of 03.08.2018, the learned Tribunal has observed in its Para 3, that in the absence of there being any legal bar created by the I B Code, 2016, the counter claim could be entertained, heard and decided on merits. Relevant Para 3 is extracted hereunder:- 3. As the claim of the Corporate Debtor can be determined only after determination of counter claim ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he treatment of Applicant s claim under the resolution plan; (c) Pass any order(s) which this Hon ble Tribunal may deem fit and proper in the facts and circumstances of the case. 15. The issue which arose was in the context of the instant proceedings, where the controversy pertains to raising of a counter claim by the Appellant, against the Corporate Debtor, whether the relief as extracted above, would at all be tenable to be pressed in before the Tribunal and that too, by invoking the provisions contained under Section 60(5) of the I B Code, 2016, which being a residuary clause, is to be used for the aspects and fields not covered by I B Code, 2016. 16. In fact, the reliefs sought as extracted above is read in precision, the Appellant was seeking a direction to clarify that its claims are not diluted under the approved Resolution Plan and a further direction to direct the RP to disclose the treatment of the Appellant s claim under the Resolution Plan. 17. The Appellant submitted that, the nature of relief, which was sought for in the IA No. 545 / 2024, would be falling well within the ambit of the provisions of Section 60(5) and that ought to have been positively considered in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lweiss Assets Reconstruction Co. Ltd. (2021) 9 SCC 657. The relevant para 86 is extracted as under:- 86. one of the principal objects of I B Code is, providing for revival of the Corporate Debtor and to make it a going concern. I B Code is a complete Code in itself. Upon admission of petition under Section 7, there are various important duties and functions entrusted to RP and CoC. RP is required to issue a publication inviting claims from all the stakeholders. He is required to collate the said information and submit necessary details in the information memorandum. The resolution applicants submit their plans on the basis of the details provided in the information memorandum. The resolution plans undergo deep scrutiny by RP as well as CoC. In the negotiations that may be held between CoC and the resolution applicant, various modifications may be made so as to ensure, that while paying part of the dues of financial creditors as well as operational creditors and other stakeholders, the Corporate Debtor is revived and is made an on going concern. After CoC approves the plan, the Adjudicating Authority is required to arrive at a subjective satisfaction, that the plan conforms to the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the Corporate Debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan; (ii) 2019 amendment to Section 31 of the I B Code is clarificatory and declaratory in nature and therefore will be effective from the date on which I B Code has come into effect; (iii) Consequently all the dues including the statutory dues owed to the Central Government, any State Government or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the Adjudicating Authority grants its approval under Section 31 could be continued. 21. Based upon the aforesaid analysis and considering the implications from the perspec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing observations therein: (1) A Demand notice cum Arbitration Notice dated 01st March 2024 has been sent to Embassy, KIPL has a counter demand (around INR 160.46 Cr) from Embassy. (2) Since the claim (INR 78.16 Cr) of Embassy has been disputed by the company and a counter claim of INR 160.46 Cr has been raised on Embassy Commercials Projects (Whitefield) Private Limited, so the claim has not been admitted by the Resolution Professional. 23. If the aforesaid extract is taken into consideration, it has observed that the Demand Cum Arbitration Notice of 01.03.2024, has been sent to the Appellant, in which KIPL (the `Corporate Debtor ), has put a counter claim of around Rs.160.46 Crores from the Appellant, and since the claim of the present Appellant has been disputed by the Corporate Debtor, on the basis that it has a counter claim of Rs.160.46 Crores, the claim cannot be admitted by the Resolution Professional. What is important is that the observation made in the communication of 11.03.2024, which has been extracted above, constitutes a specific denial to consider the claim of the present Appellant, The decision of RP on 11.03.2024 is not under challenge by the Appellant before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t only to overcome the extinguishment of their claim, but also had sought for a contrary relief which instead of helping in resolving the dispute, would rather, result in multiplying the same, because, apart from the findings recorded, the stage at which the IA No. 545 / 2024 was being considered, the Resolution Plan, had already been finally accepted and owing to its acceptance, there was no avenue left for incorporation of the leftover claims or the counter claims. Thus, the same could not have been permitted to be added by the learned Adjudicating Authority, on the basis of the relief sought for in the application. 29. There is another reason, as to why the reliefs sought for in the application i.e. IA No. 545 / 2024, could not be granted, its because of its lack of clarity and also, because, the claim of the Applicant / Appellant herein already filed in Form B on 29.01.2024 has not been admitted by the RP, holding it as disputed, based on issuance of a Demand / Arbitration Notice dated 01.03.2024, by the Corporate Debtor against the Appellant. Since, the parties i.e. the Appellant and the Corporate Debtor have raised claims and counter claims before the Arbitration proceedings, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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