Bombay High Court
Concrete Additives And Chemicals Pvt. ... vs Land-Marine Engineering And Port ... on 30 January, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION APPLICATION NO.44 OF 2022
Concrete Additives and Chemicals Pvt .. Applicant
Ltd
Versus
Land-Marine Engineering And Port .. Respondent
Solutions LLP
WITH
INTERIM APPLICATION (L) NO.1894 OF 2024
IN
ARBITRATION APPLICATION NO.44 OF 2022
Concrete Additives and Chemicals Pvt .. Applicant
Ltd
Versus
S N Engineering Services Pvt Ltd .. Respondent
Ms.Nutan Patel i/b Mahesh Menon & Co. for the applicant.
Mr.Amir Arsiwalla, Shadab Peerzade, Munir Merchant for
respondent.
CORAM: BHARATI DANGRE, J.
DATED : 30th JANUARY 2024
P.C:-
1 By an order passed by the Apex Court on
28/11/2023, the judgment of the High Court, which refused to
make over the claim to the Arbitrator under Section 11 of the
Arbitration and Conciliation Act, the SLP was allowed and the
impugned order was set aside, by recording that the High Court
erred in its conclusion that there was no arbitration clause, but
the invoices issued by the appellant and acknowledged by the
respondent had a printed arbitration clause.
While disposing of the Appeal, the arbitration
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petition was directed to be listed before the roster Judge of the
High Court taking up section 11 petition, only for the purposes
of appointment of the arbitrator.
2 It is in the wake of the above order, the petition is
placed before me.
In normal situation, it would have been a straight
forward appointment of an Arbitrator by considering the invoices
to be amounting to arbitration clause, however, certain events,
which did infact exist, but not pointed out to the Supreme Court
by the appropriate party, has posed serious difficulties.
3 The affidavit in reply is filed by one Land Marine
Engineering and Port Solutions LLP, as it has acquired interest of
SN Engineering Services Pvt Ltd, by undergoing the process of
Insolvency under the IBC Code, 2016 and along with the
affidavit in reply, the Resolution Plan submitted on 28/08/2023,
is placed on record.
The Resolution plan placed before the NCLT
Mumbai is placed on record.
It is evidently clear from the Resolution Plan that
upon its approval under the Insolvency and Bankruptcy code,
there is acquisition of the Corporate Debtor, as a going concern
as per the structure proposed in the clause 8 of the Resolution
plan. As a consequence, the SN Engineering Services Pvt Ltd the
Corporate Debtor no longer exists.
My attention is invited to a part of the plan, in form
of "Treatment of Stakeholders" which include Treatment of
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Operational Creditors, and it is clearly recorded that the
Resolution Applicant, on making payment of Rs.25,00,000/-
towards the admitted debt of Operational Creditors on or before
20th day from the day on which the NCLT approves the plan shall
amount to full and final settlement of amount due and payable to
the Operational Creditors.
Clause No. 4 also clearly stipulate that any claim of
Operational Creditors, which is not submitted to the Resolution
Professional, prior to the approval of the Resolution Plan by the
COC or the claim which is filed, but not admitted or rejected by
the Resolution Professional, such Operational Creditors shall not
be entitled to receive any payment under Resolution Plan and
necessarily indicating that such claim shall stand extinguished.
4 Upon the remand of the matter to this Court, the
petitioner poses the aforesaid difficulty, and it is for it to chalk
out its course of action, in the wake of the aforesaid
development.
Learned counsel, therefore, seek some time to
ascertain the remedy available to her, if there exist any.
Re-notify to 26/02/2024.
( SMT. BHARATI DANGRE, J.)
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