AI Drafter 
TaxTMI 
TaxTMI 
2022 (11) TMI 700
X X X X Extracts X X X X
X X X X Extracts X X X X
....assed by the Adjudicating Authority (National Company Law Tribunal), Ahmedabad, Court No.2. Company Appeal (AT) (Ins.) No. 1232 of 2022 has been filed against the order rejecting I.A. No. 486 of 2022 filed by the Appellant seeking intervention in C.P. (IB) No. 55 (AHM) 2021, whereas Company Appeal (AT) (Ins.) No. 1231 of 2022 has been filed against order dated 06.09.2022 rejecting the I.A. No. 487 of 2022 filed by the Appellant in C.P. (IB) No. 204 (AHM) 2022. Both the Appeals raises similar questions, hence, have been heard together and are being decided by this common judgment. It shall be sufficient to notice the facts in Company Appeal (AT) (Ins.) No. 1232 of 2022 for deciding both the Appeals. 2. C.P. (IB) No. 55 (AHM) 2021 was filed by 'SABIC Asia Pacific Pte. Ltd.', Operational Creditor against the 'JBF Industries Ltd.', the Corporate Debtor. The Corporate Debtor has received various financial assistance from different Banks and Financial Institutions. All the Financial Creditors of the Corporate Debtor assigned their rights and interest in relation to their aforesaid debt owed to them by the Corporate Debtor to the Appellant on 13.08.2021. There being default on part of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 5. The Corporate Debtor had also filed an I.A. No. 643 of 2022 in C.P. (IB) No. 204 of 2020 raising apprehension that the Operational Creditor may not disclose about the insurance taken with respect to the goods supplied, any claim lodged for the amount before the Insurance Company, any disbursement made by the Insurance Company of any amount, which is the subject matter of the application. The Adjudicating Authority disposed of the application and observed that the Operational Creditor will bring on record details about any insurance claim filed before the Insurance Company, any money received from the Insurance Company with respect to the claim for which Section 9 application has been filed. The Adjudicating Authority proceeded to consider the I.A. No. 486 of 2022 on 06.09.2022 and rejected the application observing that the Applicant has independent right to proceed against the Corporate Debtor under the laws available and there is no merit in the application. By order of the same date, making similar observations, I.A. No. 487 of 2022 has also been rejected. Aggrieved by the orders dated 06.09.2022 passed by the Adjudicating Authority these Appeals have been filed. 6. Shri ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cation. The Adjudicating Authority has rightly rejected the prayer of intervention. With regard to claim received from the Insurance Company of the goods, Shri Dutta does not dispute the factum of receiving insurance amount. It is submitted that the Corporate Debtor has already filed an application seeking direction to the Operational Creditor to bring into notice of the Adjudicating Authority the amount of insurance claim and its disbursement, if any, which order has already been passed by the Adjudicating Authority on 27.07.2022 in C.P. (IB) No. 204 of 2020 and the Corporate Debtor is prosecuting the aforesaid issue before the Adjudicating Authority, which does not give any right to the Appellant to intervene in the matter. It is also submitted that even if the amount of claim has been received by the Operational Creditor from the Insurance Company, the Operational Creditor can proceed with Section 9 application. Learned counsel for the Respondent has further submitted that present is not a case where in the application for intervention filed by the Appellant any ground based on Section 65 of I&B Code has been taken. There was no allegation of any collusion with the Operational C....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... impleadment as a party-Respondent. 2. The Adjudicating Authority (National Company Law Tribunal), Principal Bench, New Delhi by impugned order dated 29th May, 2019 rejected the petition for intervention not being a necessary party. 3. The Adjudicating Authority by another order dated 29th May, 2019 admitted the application under Section 7 preferred by the ICICI Bank Limited and initiated 'Corporate Insolvency Resolution Process' against 'Gwalior Bypass Project Limited'-('Corporate Debtor')." 9. In Para 14, 16 and 17 following has been laid down by this Tribunal: "14. From the aforesaid decision of the Hon'ble Supreme Court, it will be evident that the Adjudicating Authority is required to notice as to whether the application is complete or not and if there is debt and the 'Corporate Debtor' defaulted in payment and the amount is more than Rs.1 lakh, it is bound to admit an application under Section 7. Though, it is open to the 'Corporate Debtor' to object admission of application under Section 7 on the ground that the 'debt is not payable in law or in fact', but the application under Section 7 can be triggered even if the debt is disputed by the 'Corp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....raise additional funds of Rs.20 Crores and Rs.2,50,00,000/- on similar basis. The appellant filed petition (CP No.1348/2019) under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for short, 'the IBC') against Respondent No.1/Earthcon Universal Infratech Private Limited, one of the Corporate Guarantors of Respondent No.1. On 11.06.2019, Demand Notice under Section 8 of the IBC was issued by the Operational Creditor/Respondent No.2 against Respondent No.1. On 03.07.2019, Demand Notice was issued by the appellant calling upon Respondent No.1 to redeem all the debentures and make a payment of Rs.63,39,68,719/- along with all applicable charges/interest etc. Ultimately, the appellant, on 26.07.2019, filed an application under Section 7 of the IBC against Earthcon Construction Pvt. Ltd., being one of the Corporate Guarantors of Respondent No.1 in the DTD. However, on the basis of notice issued on 11.06.2019 under Section 8 of the IBC, Respondent No.2 (Operational Creditor)/Emperos Infrastructure Private Limited filed proceedings including under Section 9 of the Arbitration and Conciliation Act, 1996. 4. An application was admitted on the basis of the admission made by Res....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng averments have been made by the Applicant: "10. Pursuant to the assignment of debt, the Applicant being entitled to, initiated action under the provisions of the SARFAESI Act, 2002 by issuing notice under Section 13(2) of the SARFAESI Act, 2002 calling upon the Corporate Debtor to pay an amount of Rs.3614.83 Crores (Three Thousand Six Hundred and Fourteen Crore approximately) on 03rd September 2021. In furtherance to the said notice, the Applicant also took steps under the provisions of SARFAESI Act, 2002 under Section 13(4) and took possession of the Secured Assets and intimated the same to the borrower/Corporate Debtor, guarantor(s) and mortgagor(s) on 4th December, 2021. The Applicant craves leave to refer and rely upon the papers and proceedings in this regard. 11. The Applicant herein submits that the Applicant recently came to know about the pendency of the present proceedings and connected matter to the present proceedings filed by the Respondent No.1 herein. The Applicant is given to understand that the amount claimed, collectively in these two proceedings is in excess of Rs.100 Crores (Rupees One Hundred Crores only) and the same arise out of some oper....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of final hearing. 16. There is one more fact which has been brought in the Appeal. Appellant has brought a document dated 04.12.2017 which is titled as "Form of Acceptance Claim Discharge & Subrogation Form". It is relevant to extract the entire document, which is at page 421-422 of the Appeal, to the following effect: "FORM OF ACCEPTANCE CLAIM DISCHARGE & SUBROGATION FORM Loss Description: Payment Default claim from buyer JBF RAK (L.L.C.) failed to make payment for 6 months after the original due date of payment, Atradius claim ref 9810135 Place of Loss : Ras Al-Khaimah (UAE) Policy No. : 497753 Date of Loss : 16/09/2017 Claim No. : 497753-1 INSURED : SAUDI BASIC INDUSTRIES CORPORATION (SABIC) INSURER : THE COMPANY FOR COOPERATIVE INSURANCE (TAWUNIYA)" Subject to the approval of THE COMPANY FOR COOPERATIVE INSURANCE (TAWUNIYA), SABIC (also referred to as "We") hereby agrees to accept the sum of USD 19,910,455.30 only (Nineteen Million Nine Hundred Ten Thousand Four Hundred Fifty Five Dollars and Thirty Cents) in interim settlement of its claim as mentioned above (the "Interim Liability"). The Inter....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ified by TAWUNIYA. We hereby expressly authorize and empower TAWUNIYA to use, compromise or settle in our name or otherwise to accept the proceeds and/or monies to the extent of the aforesaid amount paid to us and all the relevant expenses incurred by us (to the extent included in the aforesaid amount paid to us) or TAWUNIYA in respect of damage to our property/interests. We also hereby confirm that the subject matter of this claim is not covered by any other insurance policy." 17. The above document indicate that the Operational Creditor has received the insurance claim from the Insurance Company - 'The Company for Cooperative Insurance (TAWUNIYA)'. Where the TAWUNIYA was also authorized to initiate all suits and proceedings and power of attorney was given to the TAWUNIYA by the Operational Creditor. When the Operational Creditor with regard to supply of goods has received the claim for insurance and it has fully and finally discharged the Insurance Company of liability and liquidate all claims under the policy and further it records that the Operational Creditor is indemnified for all claims. The said document is relevant material to be examined by the Adjudi....