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12. The decree passed by High Court of Justice, Queens Bench Division, Commercial Court of England, can be challenged only before the Court of Competent jurisdiction. The same cannot be assailed before the Adjudicating Authority, till its existence is denied.'

20. It is also not in dispute that the aforesaid order of NCLAT was carried in appeal to the Hon'ble Supreme Court of India vide a statutory appeal under Section 62 of IB Code. This statutory appeal in the Supreme Court is Civil Appeal No.9980 of 2018 and the same came to be dismissed in and by order dated 12.10.2018 stating that the Supreme Court does not find any reason to interfere with the aforesaid order of NCLAT dated 29.08.2018.

This takes us to the question as to who will examine the Validity or otherwise of the UK Court judgment / decree in the instant case. Learned senior counsel for plaintiffs is correct in referring to Paragraphs 11 and 12 of NCLAT order and saying that UK Court judgment can be challenged only in this Commercial Division which alone has competent jurisdiction in this regard. The observations made by NCLAT that the validity of the UK Court judgment should be challenged only in a Court of competent jurisdiction cannot be found fault with, but the problem for the plaintiffs presents itself in a different form i.e., who will assail or who can assail the UK Court judgment /decree in the instant case when moratorium has been declared for RIPL by NCLT and when the same has been confirmed by NCLAT. A perusal of the orders of the NCLT and NCLAT reveal that there is a definite discussion about the validity of the UK Court judgment/decree. As alluded to supra, NCLAT was absolutely correct in not embarking upon the exercise of testing the validity of the UK Court judgment/decree and holding that the same has to be assailed only in a Court of competent jurisdiction, but as RP has been appointed by NCLT (To be noted, RP is before this Commercial Division representing RIPL), it is for the RP to initiate proceedings assailing the decree.

50. In this regard, it is necessary to mention that this Commercial Division has noticed that there is no mention about Section 25 in the four page counter affidavit of RP dated 27.10.2018 spanning 8 paragraphs.

51. This takes us to the next stage of the discussion / deliberation.

52. The next stage of the discussion/deliberation is whether RP can initiate a suit in this Commercial Division assailing the foreign decree of the UK Court in the instant case. In this regard, before I delve into this aspect of the matter, it is to be noticed that NCLAT in it's order, particularly in Paragraphs 11 and 12 of its order has clearly said that validity of the foreign decree cannot be challenged before NCLAT and that it has to be done before an appropriate forum. There can be no doubt or debate about the obtaining position that this Commercial Division is the appropriate forum. Mr.Anirudh Krishnan submitted that this finding of NCLAT has been wiped out by the Supreme Court owing to the disposal of the appeal being Civil Appeal No.9980 of 2018 on 18.10.2018. The reason advanced by learned counsel is, Civil Appeal in the Supreme Court is a statutory appeal under Section 62 of the IB Code and it is not a regular petition in the Supreme Court invoking residuary powers under Article 136 of the Constitution of India. According to him, the doctrine of merger operates and the order of NCLAT has merged with the Supreme Court order. The Supreme Court order dated 18.10.2018 reads as follows:

'Heard the learned counsel for the appellant.

We do not find any reason to interfere with the impugned order dated 29.08.2018 passed by the National Company Law Appellate Tribunal, New Delhi.

Accordingly, the civil appeal is dismissed.

Pending applications shall stand disposed of.'

53. A perusal of the aforesaid order reveals that Supreme Court has held that it does not find any reason to interfere with the order of NCLAT. This means, finding/observation made by NCLAT, particularly in Paragraphs 11 and 12 of its order dated 29.08.2018 remains. If at all, it has attained the status of an order, which has merged with that of the Supreme Court order. Therefore, this Commercial Division is unable to accept the argument that the order of NCLAT and particularly Paragraphs 11 and 12 does not operate any more. To be noted, Hon'ble Supreme Court has not set aside the order of NCLAT. On the contrary, Hon'ble Supreme Court has categorically held that it does not find any reason to interfere with the order NCLAT.