Athena Demwe Power Ltd. Vs Abir Infrastructure Private Limited (NCLAT Delhi)
Held that the mobilization advance given by the Appellant to the Corporate Debtor is clearly an Operational Debt and the Adjudicating Authority committed error in rejecting the claim of the Appellant as an Operational Debt.
Facts-
Appellant awarded a contract to the Corporate Debtor. Accordingly, a mobilization advance of Rs. 7,48,40,06,136/- was transferred by the Appellant to the Corporate Debtor through the Bank Transfer. Corporate Debtor had issued Corporate Guarantee in favour of the Appellant, which was extended till 23.11.2021. However, the Contract work could not be completed since site was never made available by the owner.
NCLT (Adjudicating Authority) had initiated Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor and the Appellant had filed its claim before the Interim Resolution Professional (IRP) for an amount of Rs. 1784,99,28,651/- as a Financial Creditor. IRP informed the Appellant that his claim falls does not fall as a Financial Creditor rather it falls as an Operational Creditor. The Appellant filed his claim as an Operational Creditor. IRP informed that the claim doesn’t fall under the category of Operational Creditor. The appellant filed his claim under other creditor head. Meanwhile, the Adjudicating Authority vide an order dated 28.10.2021 had approved the Resolution Plan submitted by SREI Multiple Asset Investment Trust i.e. Respondent No. 2 for the Corporate Debtor.
The Appellant had filed an interim application before the Adjudicating Authority challenging the rejection of its claim, which was dismissed by the Adjudicating Authority. Being aggrieved, the appellant preferred present appeal.
Conclusion-
Hon’ble Supreme Court in the case of M/s. Consolidated Construction Consortium Limited noted that section 5(21) has to be interpreted in a broad and purposive manner, in order to include all those who provide or receive operational services from the corporate debtor, which ultimately lead to an operational debt.
Held that in view of the law laid down by the Hon’ble Supreme Court in M/s. Consolidated Construction Consortium Limited, the mobilization advance given by the Appellant to the Corporate Debtor is clearly an Operational Debt and the Adjudicating Authority committed error in rejecting the claim of the Appellant as an Operational Debt.
Held that the mobilization advance given by the Appellant to the Corporate Debtor is clearly an Operational Debt and the Adjudicating Authority committed error in rejecting the claim of the Appellant as an Operational Debt.
FULL TEXT OF THE NCLAT JUDGMENT/ORDER
1. This Appeal has been filed against the Order dated 12th January, 2022 passed by the National Company Law Tribunal, Court No. IV, New Delhi (hereinafter referred to as “The Adjudicating Authority”). By which Order, I.A. No. 3197/ND/2020 filed by the Appellant has been rejected.
2. Brief facts of the case necessary to be noted for deciding this Appeal are:
