LexM/S. RPS INFRASTRUCTURE LTD. versus MUKUL KUMAR & ANR.
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CASE DETAILS M/S. RPS INFRASTRUCTURE LTD. v. MUKUL KUMAR & ANR. (Civil Appeal No. 5590 of 2021) SEPTEMBER 11, 2023 [SANJAY KISHAN KAUL AND SUDHANSHU DHULIA, JJ.] HEADNOTES Issue for consideration: Whether the commercial entity’s claim pertaining to an arbitral award, in appeal u/s. 37 of the Arbitration and Conciliation Act, 1996, is liable to be included at a belated stage-after the resolution plan approved by the Committee of Creditors and pending approval by the adjudicating authority. Insolvency and Bankruptcy Code, 2016 – Initiation of Corporate Insolvency Resolution Process against the Corporate Debtor – Resolution plan approved by the Committee of Creditors-CoC and pending approval by the adjudicating authority – Inclusion of commercial entity’s claim pertaining to an arbitral award, in an appeal u/s. 37 after the delay of 287 days, if permissible: Held: It is diffi cult to release the undecided claims on the resolution applicant – Court is cautioned against allowing claims after the resolution plan has been accepted by the COC – Process followed by the resolution applicant not fl awed in any manner – Public announcement of the CIRP through newspapers would constitute deemed knowledge on the entity – Commercial entity ought to have been vigilant enough to fi nd out whether the Corporate Debtor was undergoing CIRP – Plea of not being aware of newspaper pronouncements could not be available to the entity – Mere fact that the Adjudicating Authority has yet not approved the plan does not imply that the plan can go back and forth, thereby making the CIRP an endless process – This would result in the reopening of the whole issue – Thus, NCLAT’s judgment rejecting the claim of the entity, upheld – Arbitration [2023] 12 S.C.R. 150 : 2023 INSC 816 150 151 and Conciliation Act, 1996 – s. 37 – Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. [Paras 17-22] LIST OF CITATIONS AND OTHER REFERENCES Committee of Creditors of Essar Steel India Limited through Authorised Signatory v. Satish Kumar Gupta and Ors. (2020) 8 SCC 534 – relied on. Brilliant Alloys Private Limited v. Mr. S. Rajagopal & Ors. (2022) 2 SCC 544; State Tax Offi cer v. Rainbow Papers Limited 2022 SCCOnline SC 1162; Paschimanchal Vidyut Vitran Nigam Ltd. v. Raman Ispat Pvt. Ltd. & Ors. 2023 SCC OnLine SC 842 – referred to. OTHER CASE DETAILS INCLUDING IMPUGNED ORDER AND APPEARANCES CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5590 of 2021 From the Judgment and Order dated 30.07.2021 of the National Company Law Appellate Tribunal, Principal Bench, New Delhi in Company Appeal (AT) (Insolvency) No.1050 of 2020. Appearances: Dr. Menaka Guruswamy, Sr. Adv., Tejas Patel, Ms. Meera Kaura Patel, Utkarsh Pratap, Saket, Ms. Muskaan Gandhi, Lavkesh Bhambhani, Harshwardhan Thakur, Pawan Aneja, Thejus Purushothaman, Gagan Gupta, Manu Manchanda, Nitin Singh, Ankur Yadav, Ms. Ritu Yadav, Kuldeep Yadav, Shashank Shekhar, Apoorva Singh, Advs. for the Appellant. Rajiv K Virmani, Arjun Agarwal, Anuj Malhotra, Abhinav Agrawal, Apoorv Agarwal, Vaibhav Manu Srivastava, Ms. Riya Thomas, Abhijeet Sinha, Adhish Sharma, Nitin Pandey, Deepak Chawla, Aruj Dhingra, Aakash Khattar, Navpreet S Ahluwalia, Aakash Chatterjee, Umesh Kumar Khaitan, Saurabh Kalia, Ms. Aastha Agarwal, Ms. Supriya Juneja, Advs. for the Respondents. M/S. RPS INFRASTRUCTURE LTD. v. MUKUL KUMAR & ANR. SUPREME COURT REPORTS [2023] 12 S.C.R. 152 JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT SANJAY KISHAN KAUL, J. Factual Background 1. An agreement was entered into on 02.08.2006 between the appellant and M/s KST Infrastructure Private Limited (hereinafter referred to as ‘the Corporate Debtor’), for development of land licensed with the appellant admeasuring 8 acres into a residential group housing complex at Faridabad, Haryana. However, the appellant, being aggrieved by the Corporate Debtor’s alleged misconduct in advertising the project under its own name and without mentioning the name of the appellant, sought reference to arbitration on 02.05.2011. 2. The arbitral proceedings culminated in an award dated 01.08.2016 in favour of the appellant. In addition to awarding a monetary claim, the award inter alia directed the Corporate Debtor to apply to the authorities for transfer of the requisite licenses to the appellant. Aggrieved by the award, the Corporate Debtor fi led a petition under Section 34 of the
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