RPS INFRASTRUCTURE LTD Vs. MUKUL KUMAR

JUDGEMENT

(1.) An agreement was entered into on 2/8/2006 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 2/5/2011.

(2.) The arbitral proceedings culminated in an award dtd. 1/8/2016 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 filed a petition under Sec. 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Arbitration Act') on 26/9/2016. It appears that on the same date, the appellant filed execution proceedings in respect of the said award. Those execution proceedings were ultimately adjourned sine die on 22/12/2017 on account of the pendency of the proceedings under Sec. 34 of the Arbitration Act. These proceedings under Sec. 34 of the Arbitration Act culminated in the award being upheld by the A.D.J. (Special Commercial Court, Gurugram), albeit with some modifications, on 25/4/2019. An appeal filed against the same under Sec. 37 of the Arbitration Act is stated to be pending.

(3.) Meanwhile, the Corporate Insolvency Resolution Process ('CIRP') was initiated against the Corporate Debtor in respect of three real estate projects viz. (i) Sector 114, Gurugram, (ii) Sector 89, Faridabad, and (iii) KST Whispering Heights in Sector 88, Faridabad by certain homebuyers who had invested in these projects. This application under Sec. 7 of the Insolvency and Bankruptcy Code (hereinafter referred to as 'the IBC') was admitted on 27/3/2019 by the Adjudicating Authority. On the same date, an Interim Resolution Professional ('IRP') was appointed. The IRP issued a public announcement inviting claims from creditors, in accordance with Sec. 15 of the IBC read with Regulation 6 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (hereinafter referred to as the 'IBBI Regulations') on 30/3/2019. After receipt of the claims, the IRP constituted the Committee of Creditors ('COC') on 6/11/2019 and circulated the draft information memorandum and invited expressions of interest from prospective resolution applicants. Five such applications were received.