TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 1281
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....ct of the impugned order has been, that the Respondent herein has been permitted to file a counter claim before the Arbitral Tribunal and further the Arbitral Tribunal was directed to proceed with the arbitration proceedings on such claim, which has been raised by way of a counter claim on merits. However, a rider has been attached to the order that the declaration of the award, as a consequence of the submission of the counter claim would be kept in abeyance. 4. The aforesaid judgment was rendered, on the basis of the Judgment, which has been rendered in the matters of Jharkhand Bijli Vitran Nigam Limited V. IVRCL, as reported in 2018 SCC Online 891. It is contended by the Ld. Counsel for the Appellant that, the said judgement has been wrongly relied upon for the reason being that, the said judgement is a judgment in per incuriam, since being a judgment that was rendered with consent, it will not be a ratio decidendi. 5. He submits that, in view of the Judgement rendered in P. Mohan Raj & others V. Shah Brothers Ispat Private Ltd., as reported in 2021 Vol VI, SCC 258, once the moratorium is imposed and it is in operation, a direction for submission of the counter claim in an Arb....
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....fore the Ld. Adjudicating Authority on 21.04.2024 praying for, to allow the application and permit the Arbitral Tribunal to entertain and adjudicate upon his counter claim of the Applicant i.e. National Highway Authority of India, as it was filed before the Arbitral Tribunal to decide the same on merits. It is on this application the impugned order of 09.07.2024 has been passed, which is the subject matter of challenge in Company Appeal (AT) (CH) (INS) No. 303 / 2024. 10. At this stage, we are not required to make a detailed venture to the merits of the Appeal, because, what authority or a right does the Appellant have to put a challenge to the order of 09.07.2024 as it has been passed in IA No. 1091 / 2024, would be dependent upon the order that, has been passed on an Intervention Application i.e. IA No. 21 / 2024, as it stood preferred by the Applicant praying for, to be permitted to be impleaded in IA No. 1091 / 2024, as preferred in CP (IB) No. 77 / 7 / HDB / 2022. 11. In the proceedings of the aforesaid Company Petition, the Applicant had filed an Intervention Application on 15.06.2024, praying there of that, he may be permitted to be impleaded, as an Applicant and a necessa....
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....s individual capacity will not have any vested right to maintain the Application for intervention particularly when the Corporate Debtor has already been placed under CIRP process and which is now subject matter of challenge in an Appeal preferred by the Appellant before this Tribunal. 14. Apart from it, the Ld. Counsel for the Respondent has made reference to sub-section 2 of Section 17 of I & B Code, 2016, and as a consequence thereto he submits, that since all the rights of the management of the Corporate Debtor stands vested with the IRP after commencement of CIRP, his right would not be affected at all in any manner whatsoever, in any proceedings in relation to the Corporate Debtor and hence, he may not be the necessary party for the purposes of adjudicating upon IA No. 1091 / 2024 as preferred in CP (IB) / 77 / 7 / HDB / 2022. 15. The Appellant has contended that he had filed a Company Appeal being Company Appeal (AT) (CH) (INS) No. 310 / 2023, challenging the order of admission of the Corporate Debtor into the CIRP process, under Section 7 of the I & B Code, 2016, and that this Appellate Tribunal has granted an interim order, that is operating till date and since he is the....
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....ed and decided on merits. 20. The Ld. Counsel for the Appellant had relied upon the Judgment in Company Appeal (AT) (CH) (INS) No. 240 / 2024 in the matters of Mr. Kamma Srinivasa Rao, Trichy-Thanjavur Expressways Ltd. v. Raghu Babu Gunturu, RP, Trichy-Thanjavur Expressways Ltd. & Anr., which was preferred by the Appellant, arising from an order of 29.05.2024, allowing the Application bearing IA (IBC) No. 982 / 2024 that was filed by the Respondent therein, to take on record the list of Creditors dated 16.02.2024 and 05.03.2024. 21. It is under the aforesaid backdrop that, since the list of Creditors, which was directed to be taken on record, the Appellate Tribunal, taking into consideration exclusively the fact that, the list of Creditors has been taken on record, without providing an effective opportunity to the Appellant, had interfered in the Appeal holding that the order of taking the list of Creditors on record, happens to be in violation of the principles of natural justice, as no effective hearing was provided and accordingly quashed the order and remanded the same to the Ld. NCLT to be considered afresh after following the principles of natural justice. The facts narrate....
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....rmined that the person seeking himself to be impleaded or intervene, is able to establish that his presence is indispensable and the lis cannot be effectively decided without hearing the Appellant, on its own merits. In fact, this was not a case which was ever attempted to be established by the Appellant while pressing upon IA No. 21 / 2024. 26. It is needless to say, that when any Court or Tribunal is considering the Application for Intervention, it will have to test that, there must be an enforceable right to some relief that has been sought as against the party in respect of the controversy under consideration in the proceedings or that no effective or final adjudication can be made in the absence of such a person who is seeking to be impleaded as a party. The ingredients were not satisfied by the Appellant while pressing upon IA No. 21 / 2024, seeking his impleadment. In fact, the ratio and basic governing principles of necessity for impleadment, as aforesaid has been not been satisfied by the Appellant, which could have permitted him to be impleaded as a party to the proceedings. 27. The Ld. Tribunal, has further taken the view that, in the light of the relief, which was sou....
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.... when he is not a party to the proceedings of the Arbitration proceedings. 30. For the purposes of an effective adjudication of IA No. 1091 / 2024, there was no necessity for the Appellant / Applicant, to be impleaded, wherein only a direction was being issued to permit filing of a counter claim, in an Arbitration proceedings, to which Appellant is not party. What legal bearing will the order passed in IA No. 1091 / 2024, on 09.07.2024, granting permission for filing of a counter claim in a pending Arbitration proceedings, during the operation of moratorium imposed under Section 14 of I & B Code, 2016, is a question which cannot be permitted to be agitated at the behest of the Appellant, when he himself by the documents placed on record has failed to establish that the lis could not have been effectively decided in his absence. 31. Once, the Ld. Tribunal has determined; (a) That the Appellant is not a party to the proceedings of the Arbitration case, for which the directions was issued while passing orders on IA No. 1091 / 2024; (b) That when IA No. 1091 / 2024 was pertaining to raising of a counter claim in Arbitrational proceedings, Application seeking for impleadment at hi....