Madras High Court
Previously Having Office At vs M/S.Ivrcl Assets And Holding Ltd on 18 September, 2025
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
O.P.No.528 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.09.2025
CORAM
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
O.P.No.528 of 2020
and
A.Nos.2874 & 3801 of 2021
M/s.AL TIRVEN STEELS LTD
Rep.by its Director,
D.Srinivas,
No.1111, 3B, Z-Block
13th Street, Anna Nagar,
Chennai 600 040.
Previously having office at
31/32, Nathamuni Street,
Naduvankarai,
Chennai 600 040. ... Petitioner
Vs.
1.M/s.IVRCL Assets and Holding Ltd.,
Formerly known as
IVR Prime Urban Developers Ltd.,
Rep.by its Managing Director,
No.30-A, South Phase,
6th Cross Street, Thiru.Vi.KaIndl.Estate,
Guindy, Chennai – 600 032.
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O.P.No.528 of 2020
2.Mr.Justice K.Govindarajan (Retd),
Sole Arbitrator,
No.5, Justice Ramanujam Road,
Malavia Avenue, Shasthri Nagar,
Chennai – 600 041. ... Respondents
PRAYER : Original Petition filed under Section 34(1) of the Arbitration
and Conciliation Act, 1996, praying to set aside the order/award dated
09.01.2019 passed by the Sole Arbitrator/2nd Respondent and restore the
Arbitration Proceedings between the petitioner and the 1st respondent in
MoU dated, 20.12.2006 and thus render justice.
In O.P.No.528 of 2020
For Petitioner : Mr.S.Sathiaseelan
In A.No.2874 of 2021
For Applicant : Mr.S.Sathiaseelan
For Respondents : Mr.M.S.Seshadri
In A.No.3801 of 2021
For Applicant : Mr.Thriyambak J.Kannan
For Respondents : Mr.S.Sathiaseelan
(For R1)
Mr.M.S.Seshadri (For R2)
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O.P.No.528 of 2020
ORDER
This petition was originally filed under Section 34 of the Arbitration
and Conciliation Act, 1996 against the order dated 09.01.2019 made by the
Arbitral Tribunal constituted by the Sole Arbitrator. This Court passed an
order on 23.01.2023 and the same is extracted hereunder:
“Read this in conjunction with and in continuation of
earlier proceedings dated 06.01.2021 made by this Court in
captioned Original Petition being O.P.No.528 of 2020, which
reads as follows:
'Read this in conjunction with and in continuation of
earlier proceedings made in the captioned OP in the listing on
02.12.2020, which reads as follows:
'Captioned 'Original Petition' ('OP' for the sake of
brevity) is an application under Section 34 of 'The Arbitration
and Conciliation Act, 1996 (Act No.26 of 1996)', which shall
hereinafter be referred to as 'A and C Act' for the sake of
brevity.
2. An order dated 09.01.2019 made by an 'Arbitral
Tribunal' ('AT' for the sake of brevity) constituted by a sole
Arbitrator, who is a former Hon'ble Judge of this Court has
been called in question (hereinafter 'impugned order' for the
sake of convenience and clarity). To put it differently,
impugned order is sought to be set aside in the captioned OP.
Mr.S.Sathiaseelan, learned counsel on record for the sole
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petitioner is before me in this web-hearing on a video-
conferencing platform.
3. The issue that came up for consideration is,
whether the impugned order would qualify as an arbitral award
within the meaning of Section 2(1)(c) of the A and C Act. Be
that as it may, a perusal of the impugned order brings to light
that AT says that it has been made under Section 32(2)(c) of the
A and C Act. To be noted, the order pertains to termination of
proceedings. Learned counsel for petitioner submits that the
order ought to have been made under Section 25(c) of A and C
Act. Without expressing any opinion on the provision under
which the order could have been made, the fundamental
question or the preliminary question is whether the impugned
order can be assailed by way of an application under Section
34 i.e., captioned OP. Learned counsel for petitioner submitted
that he had earlier filed a writ petition in this Court assailing
the impugned order being writ petition dated 23.01.2019 filed
vide S.R.No.10922 dated 23.01.2019, but the same has not been
pursued further. This Court is informed that this writ petition is
now lying under objections qua Registry.
4. The neat preliminary question is, whether the
impugned order i.e., order dated 09.01.2019 made by the AT
can be assailed under Section 34 of the A and C Act or whether
the learned counsel should pursue the aforementioned writ
petition and/or seek any other remedy in law. A further
question is, whether the impugned order would qualify as an
arbitral award within the meaning of Section 2(1)(c) of A and C
Act.
5. Faced with the above situation, learned counsel for
petitioner sought time to examine the obtaining legal position
and make submissions regarding the above question.
At request of learned counsel for petitioner, list this
matter on 15.12.2020.'
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2. Aforementioned proceedings are self explanatory
in the listing, thereafter on 15.12.2020, learned counsel for
petitioner in captioned OP filed a memo and proceedings made
on 15.12.2020 listing reads as follows:
'Mr.S.Sathiaseelan, learned counsel on record for
petitioner adverting to earlier proceedings dated 02.12.2020
submits that he has filed a memo (physical filing) yesterday
(14.12.2020).
2. Registry to place the hard copy of the memo as
part of the case file in the next listing. Learned counsel submits
that a soft copy of the memo has also been e-mail filed.
At request, list after Chirstmas vacation under the
same caption.'
3. Owing to limited purpose for which these
proceedings are made, I do not propose to reproduce the entire
memo. It will suffice to extract and reproduce the last
paragraph of memo dated 14.12.2020 which reads as follows:
'In view of the above factual and legal submissions, it
is humbly prayed that this Hon'ble Court may be pleased to
treat the present original petition filed U/s.34(1) of the A and C
Act as an application filed u/s.14(2) of the A and C Act and thus
render justice.'
4. Today, in this web hearing on a video conferencing
platform i.e., Virtual Court Mr.S.Sathiaseelan learned counsel
draws the attention of this Court to the aforementioned memo
and requests this Court to treat the captioned OP as an
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application under Section 14(2) of 'The Arbitration and
Conciliation Act, 1996 (Act No.26 of 1996)', which shall
hereinafter be referred to as 'A and C Act' for the sake of
convenience and clarity. Learned counsel adds that this is a
Commercial Division matter within the meaning of Section
10(2) of The Commercial Courts Act, 2015 (Act No.4 of 2016)
and he also submits that quoting a wrong provision of law can
neither disentitle the petitioner from seeking relief nor denude
the Court of its powers to hear the matter if the Court otherwise
has powers.
5. This takes us to the allocation of work/roster made
by Hon'ble Chief Justice which is now operating on and from
04.01.2021. The allocation of work to me figures at Serial
No.16 and the same reads as follows:
16 M.Sundar, J Applications for setting aside of arbitral awards
under Sec.34 of the Arbitration and Conciliation
Act, 1996 and/or Sections 30 and 33 of the
Arbitration Act, 1940 including cases relating to
Commercial Division in the above classification
Company Petitions and Company Appeals.'
6. The allocation of work regarding arbitration
matters to another Hon'ble Single Judge whose name figures at
Serial No.32 reads as follows:
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32 P.T.Asha, J ........................... Arbitration Matters, including
cases relating to Commercial Division, which are
not specifically assigned to any other Bench
Civil Miscellaneous Appeals and Civil Revision
Petitions relating to Arbitration Laws.'
7. To be noted, the above extract is relevant portion
of allocation of work qua arbitration matters.
8. Therefore, if the captioned OP is to be treated as
an application under Section 14(2) of A and C Act, it may have
to be heard by another Hon'ble Single Judge according to
roster. Be that as it may condition precedent for such a
scenario to unfurl is a decision regarding acceding to the
request which involves a clear overlap qua Sections 34 and 14
of A and C Act.
9. In this view of the matter, Registry is directed to
place the case file along with this proceedings before Hon'ble
Chief Justice for suitable orders.
10. Though obvious it is made clear that instant
proceedings have been made for the limited purpose of clarity
qua note to be placed before Hon'ble Chief Justice by Registry
and therefore, no view or opinion on merits of the matter or the
contents of aforesaid memo has been made in this proceedings.
11. Let the Registry place this case file before Hon'ble
Chief Justice seeking suitable orders along with this
proceedings and aforementioned memo dated 14.12.2020 filed
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by petitioner in captioned OP.'
2. Petitioner in main OP shall be referred to as 'AL
TIRVEN'. First respondent in main OP [IVRCL Assets and
Holdings Ltd.,] shall be referred to as 'IVRCL A & H' for the
sake of convenience. To be noted, there is another company by
name 'IVRCL Limited', which shall be referred to as 'IVRCL'
for the sake of convenience. IVRCL is the holding company
qua IVRCL A & H besides two other entities, namely 'Rihim
Developers Private Limited' [hereinafter 'Rihim' for the sake of
convenience] and 'IVRCL TLT Private Limited' [hereinafter
'IVRCL TLT' for the sake of convenience]. It is further to be
noted that while IVRCL held approximately 76% equity in
IVRCL A & H, Rihim and IVRCL TLT are wholly owned by
IVRCL.
3. Today Mr.S.Sathiaseelan, learned counsel for AL
TIRVEN, Mr.M.S.Seshadri, learned counsel for IVRCL and
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Ms.E.N.Hareepriya, learned counsel for Rihim (Applicant in
A.No.3801 of 2021 being implead application) are before this
Court.
4. From the submissions made by the aforementioned
learned counsel before this Court, it comes to light that there
has been a scheme for merger and demerger inter alia under
Sections 391 to 394 of the erstwhile Companies Act, 1956 as
between IVRCL, IVRCL A & H, Rihim and IVRCL TLT. The
shareholders are also parties.
5. The above scheme has been duly approved by
Hon'ble Andhra Pradesh High Court in and by order dated
02.07.2012 made in C.P.Nos.58 to 61 of 2012. The appointed
date is of significance and the same is 01.04.2011.
6. This Court is informed that IVRCL is now under
CIRP qua National Company Law Tribunal, Hyderabad Bench
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vide order dated 26.07.2019 made in CP (IB)
No.294/7/HDB/2017 in proceedings initiated under Section 7 of
'Insolvency and Bankruptcy Code, 2016' [hereinafter 'IBC' for
the sake of brevity] and Mr.Sutanu Sinha is now the Liquidator
qua IVRCL.
7. The aforementioned 06.01.2021 proceedings is
inter alia telltale qua the trajectory the arbitral proceedings
have taken.
8. As regards the CIRP proceedings, the same has
been captured supra. From a conjoint reading of the two, the
most relevant factor appears to be Section 11 proceedings
before this Court vide O.P.No.289 of 2011 wherein a former
Hon'ble Judge of this Court was appointed as sole Arbitrator in
and by an order dated 05.09.2014. To be noted, when this
05.09.2014 came to be made, the aforementioned merger and
demerger scheme had kicked in and was operating as the
appointed date is 01.04.2011 but it is not clear as to whether
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this was brought to the notice of Hon'ble Judge/Hon'ble Chief
Justice who made the order dated 05.09.2014.
9. A search in the official website of this Court by the
Court for 05.09.2014 order made in O.P.No.289 of 2011 did
not yield results.
10. Learned counsel for petitioner, faced with the
above situation sought for a short accommodation to produce
the aforementioned order as that appears to assume
significance in the scheme of things qua merger/demerger.
11. Learned counsel for petitioner requests for a
short accommodation. Request acceded to.
List after a fortnight in my next single sitting.”
2. The matter was once again listed on 23.07.2024 along with
Application No.2874 of 2021 in O.P.No.528 of 2020 and Application
No.3801 of 2021 in Application No.2874 of 2021 in O.P.No.528 of 2020.
The Application No.2874 of 2021 was filed to substitute the Liquidator in
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place of the existing sole respondent in O.P.No.528 of 2020. The
Application No.3801 of 2021 was filed by a third party, seeking to implead
as the proposed second respondent in Application No.2874 of 2021 in
O.P.No.528 of 2020. The learned Judge recused himself by passing an order
dated 23.07.2024.
3. When the matter was taken up for hearing today, the learned
counsel appearing for the applicant submitted that even though the petition
was originally filed under Section 34 of the Act, it has to be treated only as
an application under Section 14(2) of the Act, which pertains to the order
passed by the Arbitral Tribunal dated 09.01.2019, refusing to recall the
order of termination dated 26.02.2018 originally made under Section 25(a)
of the Act and subsequently held to be under Section 32(2)(c) of the Act
owing to multiple claims and proceedings before the National Company
Law Tribunal (NCLT).
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4. The learned counsel appearing on behalf of the Liquidator broadly
made two submissions. The first submission is that the present petition
cannot be proceeded further in view of Section 33(5) of the IBC Code.
Insofar as this submission is concerned, the learned counsel brought to the
notice of this Court the judgment of the Hon’ble Mr.Justice N.Sathish
Kumar, in the case of Chennai Metro Rail Limited, represented by the
Chief General Manager vs. Lanco Infratech Limited, represented by the
Liquidator Lanco House and others, reported in 2020 SCC OnLine (Mad)
26397. The learned counsel submitted that the learned Judge took a view
that there is no bar in dealing with the petition filed before the Court. This
order was put to challenge before the Hon'ble Division Bench in
O.S.A.No.249 of 2020, and the Division Bench entertained the appeal and
granted an order of interim stay.
5. The other submission that was made by the learned counsel for the
Liquidator is that since the petitioner has not even submitted his claim
within the time stipulated under the IBC, he is barred from making any
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claim in future. To substantiate this submission, the learned counsel relied
upon the judgment of the Apex Court in the case of RPS Infrastructure
Limited Vs. Mukul Kumar and another, reported in 2023 (10) SCC 718.
The learned counsel submitted that in the case before the Apex Court, the
claimant was having an award in his favour and in spite of the same, the
claim was not made in time and it was held by the Apex Court that the
corporate debtor/claimant has missed the bus and therefore, he cannot make
any further claims.
6. In reply to the above submission, the learned counsel for the
petitioner brought to the notice of this Court the judgment of the Bombay
High Court in the case of Urban Infrastructure Trustees Ltd., Vs. Bhavik
Bhimjiyani and others, reported in 2018 SCC OnLine Bom 20447, where
the Bombay High Court had taken into consideration Section 35(1)(k) of the
IBC Code and has held that it is always left open to the Liquidator to defend
the company before the Tribunal.
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7. The learned counsel also brought to the notice of this Court the
order passed by the Apex Court against the order passed by the Bombay
High Court in SLP Nos. 391-392 of 2019 dated 09.04.2024, where the Apex
Court permitted the petitioner to withdraw the case and to work out the
remedy in accordance with law.
8. In view of the above, the learned counsel for the petitioner
submitted that even before the first order was passed by the learned
Arbitrator on 26.02.2018, the moratorium order had already come into force
on 23.02.2018 itself, by virtue of the order passed by the NCLT, Hyderabad,
dated 23.02.2018. Therefore, it was contended that the first order passed
itself is unsustainable in law.
9. In the considered view of this Court, in light of the stand that has
now been taken by the Liquidator, even if this Court permits the arbitration
proceedings to continue and an award is also passed in favour of the
petitioner, it is not certain as to what subsequent remedy can the petitioner
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seek even after obtaining the award. In this situation, it may even be a
wasteful exercise for the petitioner to go before the Arbitrator and start the
proceedings all over again.
10. When this Court expressed its mind, the learned counsel for the
petitioner submitted that the petitioner may be permitted to make the claim
before the Liquidator by raising all the grounds and the same can be
considered by the Liquidator in accordance with law.
11. Taking into consideration the facts and circumstances of the case
and considering various subsequent developments, which has taken place in
this case and also taking note of the fact that at no point of time, the
petitioner was made aware of the proceedings before the NCLT under IBC
by the respondent and the petitioner claims to have been kept in dark right
through and the claim made by the petitioner can always be considered by
the Liquidator strictly in accordance with law, this Court is inclined to grant
liberty to the petitioner to make the claim before the Liquidator by raising
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all the grounds. The Liquidator, who is now in charge of the respondent
company, shall consider the claim on its own merits and in accordance with
law and take a decision and inform the same to the petitioner. The entire
process shall be completed within a period of three (3) months from the date
of receipt of the claim from the petitioner.
12. This petition in O.P.No.528 of 2020 is disposed of in the above
terms. In view of this order, the other applications in A.Nos.2874 and 3801
of 2021 are closed. However, there shall be no order as to costs.
18.09.2025
NCC: Yes / No
Index : Yes / No
Speaking Order : Yes / No
kak
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N.ANAND VENKATESH, J.
kak
18.09.2025
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