The court lacks jurisdiction to entertain execution applications against dissolved entities; disputes of fraud must be resolved by NCLT as per the Insolvency and Bankruptcy Code.

ORDER :

ABHAY AHUJA, J.

1. This Interim Application inter alia seeks impleadment of the proposed Respondents no.1 to 4 as party Respondents to the Execution Application and to all the pending applications, in addition to other prayers.

2. Mr. Karl Tamboly, learned Counsel appearing for the Respondents no.1 to 3 and Ms. Nishtha Mohanty, learned Counsel for the Respondent no.4, at the outset, submit that this application as well as the Commercial Execution Application is not maintainable as the Award Debtor viz. Ogene Systems (I) Pvt Ltd. has been dissolved by the order dated 13^th April 2023 of the National Company Law Tribunal (“NCLT”) and also that this Court has no jurisdiction to entertain this application as well as the Execution Application, in as much as, there are allegations of fraud and misrepresentation involved in the way in which the order dated 13^th April 2023 of the NCLT was obtained and the Award Debtor company dissolved as well as the allegation that the directors of the Award Debtor company in connivance with the Resolution Professional have misappropriated the funds of the company, and would have to be decided only by the NCLT or the National Company Law Appellate Tribunal (“NCLAT”) and not this Court.

3. Mr.Arsiwalla, learned Counsel for the Applicant, has at the outset submitted that the Applicant did not have any notice of the proceedings before the NCLT nor was any notice as per Regulation 6-A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulation, 2016, given/sent to the Applicant. That, the Interim Resolution Professional ought to have sent a communication along with a copy of the public announcement under Regulation 6 of the said Regulation to all the creditors which has not been done. That, no notice was given to the Decree holder although it is an admitted position that the name of the Decree holder was not shown in the books of accounts.

4. Mr.Arsiwalla has submitted that, since the appointment of the Resolution Professional as well as the liquidation of the company has been without the knowledge or any notice of the application and as the entire Corporate Insolvency Resolution Proceedings (CIRP) was to fraudulently circumvent the liability, the Respondents sought to be impleaded are personally liable, and therefore, this Court may not only implead the Respondents as parties to the Execution Application but also direct them to make disclosures of their personal assets and that the reliefs as sought for in this Application be granted.

5. Mr.Arsiwalla submits a perusal of the petition filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (the “IBC”) by one ‘Platina Properties and Projects Ltd’ ( the “financial creditor”) on 09^th February 2022 shows that the very initiation of the CIRP was fraudulent and intended only to defeat the claim of the Applicant herein. Mr. Arsiwalla submits that the said financial creditor of the Award Debtor did not enter into any agreement to provide financial assistance to it, and rather some amount allegedly transferred by the financial creditor to the Award Debtor was subsequently classified as borrowing and the debt was not reflected in the financial statements of the Award Debtor for the relevant time period and that the claim of the financial creditor was cooked up only for the purpose of getting the Petition admitted and initiating CIRP against the Award Debtor. Mr. Arsiwalla submits that, therefore, there are elements of fraud and misrepresentation involved in the purported dissolution of the Award Debtor and this Court ought to pierce the corporate veil and hold that the proposed Respondents are liable for the fraudulent conduct and violation of the order dated 11^th February 2020. Mr. Arsiwalla submits that the Respondents have taken deliberate steps to frustrate the award.

6. Mr. Arsiwalla, learned Counsel further submits that vide order dated 11^th February 2020 in Chamber Summons No. 909 of 2018 the