Delhi High Court - Orders
Rishima Sa Investments Llc (Mauritius) vs Shristi Infrastructure Development ... on 31 January, 2023
Author: Prateek Jalan
Bench: Prateek Jalan
$~29 & 30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(EFA)(COMM.) 5/2019 & EX.APPLs.(OS) 374/2019,
375/2019, 524/2019, 330/2021, 770/2021, 854/2021, 1077/2021,
1258/2021, 1322/2021, 1374/2021, 1377/2021, 2756/2022.
RISHIMA SA INVESTMENTS
LLC (MAURITIUS) ..... Decree Holder
Through: Mr. Rajshekhar Rao, Sr. Adv. with
Mr. Varun Agarwal, Ms. Mansi
Sood, Advocates.
versus
SHRISTI INFRASTRUCTURE DEVELOPMENT
CORPORATION LIMITED & ANR. ..... Judgement Debtors
Through: Mr. Jayant Mehta, Sr. Adv. with
Mr. Vijay Singh, Mr. Ratik
Sharma, Mr. Nishant Goyal, Mr.
Raghav Bhatia, Advocates.
Mr. Raunak Dhillon, Ms. Ananya
Dhar Choudhury, Mr. Nihaad
Dewan, Advocates for of
Intervenor / JC Flowers Asset
Reconstruction Pvt. Ltd.
+ O.M.P.(EFA)(COMM.) 6/2021 & EX.APPLs.(OS) 651/2021,
769/2021, 775/2021, 1079/2021, 1372/2021, 1378/2021,
2755/2022.
RISHIMA INVESTMENTS SA LLC ..... Decree Holder
Through: Mr. Anirudh Bakhru, Ms.
Vasundra Bakhru, Ms. Tejaswini
Chandar Chakhar, Mr. Varun
Agarwal, Advocates.
versus
Signature Not Verified
Digitally Signed
By:SHITU NAGPAL O.M.P.(EFA)(COMM.) 5/2019 & O.M.P.(EFA)(COMM.) 6/2021 Page 1 of 4
Signing Date:01.02.2023
12:14:20
SHRISTI INFRASTRUCTURE DEVELOPMENT
CORPORATION LIMITED ..... Judgement Debtor
Through: Mr. Jayant Mehta, Sr. Adv. with
Mr. Vijay Singh, Mr. Ratik
Sharma, Mr. Nishant Goyal, Mr.
Raghav Bhatia, Advocates.
Mr. Mehul Parti, Ms. Mahima
Singh, Ms. Palak Vashisth,
Advocates for Resolution
Professional.
Mr. Raunak Dhillon, Ms. Ananya
Dhar Choudhury, Mr. Nihaad
Dewan, Advocates for of
Intervenor / JC Flowers Asset
Reconstruction Pvt. Ltd.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
ORDER
% 31.01.2023 EX.APPL.(OS) 3711/2022 in O.M.P.(EFA)(COMM.) 6/2021
1. This application has been filed by the Resolution Professional ["RP"] of Sarga Hotel Private Limited ["SHPL"] for impleadment in the present proceedings.
2. In the order dated 21.12.2022, it was recorded that the award holder does not wish to enforce the award against SHPL in the present proceedings due to the pendency of proceedings under the Insolvency and Bankruptcy Code, 2016 ["IBC"] against SHPL. However, in view of an averment made by the award holder in I.A. 1131/2022 filed before the National Company Law Tribunal ["NCLT"], the Court prima facie found an inconsistency in the position taken by the award holder and therefore directed the award holder to file a reply to the application.
Signature Not Verified Digitally Signed By:SHITU NAGPAL O.M.P.(EFA)(COMM.) 5/2019 & O.M.P.(EFA)(COMM.) 6/2021 Page 2 of 4 Signing Date:01.02.2023 12:14:203. The reply has now been filed in which the award holder states that the averments in I.A. 1131/2022 were erroneous and made inadvertently. It is further stated as follows: -
"9. The Petitioner once again reiterates that without prejudice to its rights, claims and contentions (all of which are reserved), during the pendency of the moratorium and in view of the legal position, the Petitioner is not seeking to enforce the Partial Award or the Final Award against Sarga. However, the Petitioner may seek liberty of the relevant court to initiate/ continue proceedings against Sarga with respect to enforcement of the aforesaid awards at the relevant time.
10. Accordingly, as the Petitioner currently is not seeking to enforce the Final Award against Sarga, the Petitioner states that it is not necessary for Sarga to be impleaded as a party to OMP 6 and the Petitioner prays that this Honb'le Court may therefore dispose off the present application in these terms. This is without prejudice to Petitioner's claims against Sarga under the Final Award and the Partial Award which Petitioner is entitled to pursue under the CIRP."
4. The contention of learned counsel for the applicant, however, is that the attempt of the award holder to reserve its right to enforce the present award against SHPL in future is against the scheme of IBC. It is stated that the award holder has, in fact, made a claim before the applicant (being the RP of SHPL) and it will not be legally permissible for the award holder to enforce the award against SHPL in the event a resolution plan is approved by the NCLT.
5. In my view, it is not necessary to enter into this controversy at this stage. The award holder has categorically stated (and this position is confirmed today by Mr. Anirudh Bakhru, learned counsel for the award holder), that the award is not being enforced against SHPL in the present proceedings. In this view of the matter, it is not necessary to implead the RP in this petition. However, It is made clear that in the event the award holder seeks enforcement against SHPL at any time in future, the rights Signature Not Verified Digitally Signed By:SHITU NAGPAL O.M.P.(EFA)(COMM.) 5/2019 & O.M.P.(EFA)(COMM.) 6/2021 Page 3 of 4 Signing Date:01.02.2023 12:14:20 and contentions of the SHPL with regard to maintainability of the enforcement proceedings against it and with regard to the merits of the award holder's case may be agitated at that stage.
6. The application is disposed of with these observations. O.M.P.(EFA)(COMM.) 5/2019 & O.M.P.(EFA)(COMM.) 6/2021
1. Submissions of Mr. Jayant Mehta, learned Senior Counsel for the objector, continued but remain inconclusive.
2. With the consent of learned Senior Counsel for the parties, list on 24.02.2023.
PRATEEK JALAN, J JANUARY 31, 2023 'Bhupi' / Signature Not Verified Digitally Signed By:SHITU NAGPAL O.M.P.(EFA)(COMM.) 5/2019 & O.M.P.(EFA)(COMM.) 6/2021 Page 4 of 4 Signing Date:01.02.2023 12:14:20