JUDGEMENT

ASHOK BHUSHAN, J.

1. This Appeal has been filed by the Liquidator of Corporate Debtor challenging the Order dated 09th October, 2023 passed by National -2- Company Law Tribunal, Chandigarh Bench, Chandigarh (hereinafter referred to as ‘The Adjudicating Authority”) in I.A. No. 1626 of 2022 filed by the Liquidator under Section 66 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as ‘The Code’).

2. Brief facts of the case giving rise to this Appeal are:-

i.

National Highway Authority entered into a Concession Agreement with Soma Isolux Varanasi Aurangabad Tollway Pvt. Ltd. (hereinafter referred to as “Concessionaire’) to construct, operate and maintain the project.

Engineering procurement and construction contract dated 21st January, 2011 was entered between Soma Isolux Varanasi Aurangabad Tollway Pvt. Ltd. (Concessionaire) and the Isolux Corsan India Engineering and Construction Pvt. Ltd. (hereinafter referred to as “Corporate Debtor’). Corporate Debtor was to design and execute the work from Km 871 to 978 Six Lane Varanasi-Aurangabad Section of NH-2.

ii.

There were certain issues between the Corporate Debtor and the Concessionaire. On 14th June, 2017, Concessionaire terminated the agreement with the Corporate Debtor and invoked Bank Guarantees.

iii.

Corporate Insolvency Resolution Process was initiated against the Corporate Debtor at the instance of Oriental Bank of Commerce vide order dated 11.10.2018. The Appellant was appointed Liquidator in the Liquidation Proceedings of the Corporate Debtor vide Order dated 06.02.2020. -3- iv.

Forensic Audit Report was conducted in the Liquidation Proceedings of the Corporate Debtor. Liquidator on 07.09.2021 gave a notice of claim for additional cost on account of changes in the scope of work, price variation and prolongation of working due to the delay caused along with the supporting document on behalf of the Corporate Debtor to the tune of INR 570.14 Crores to the Concessionaire.

v.

I.A. No. 609 of 2021 was filed by the Liquidator on 05.10.2021 under Section 60(5) read with Section 33(5), 35(1)(k) seeking approval of the Adjudicating Authority to initiate arbitration proceedings against the Respondent with regard to NH-2 Project.

vi.

There were certain conciliation meetings between the Liquidator and the Concessionaire during the period. In I.A. No. 609 of 2021 the Respondent No. 1 the Concessionaire was also impleaded as one of the Respondent for which I.A. No. 96 of 2022 was filed which was allowed by the Adjudicating Authority. On 3rd November, 2022 Liquidator filed I.A. No. 1626 of 2022 under Section 66 read with section 67 of the Code relying on the transaction audit report in which application the Respondent No. 1 herein was Respondent No. 8. On 3rd July, 2023 I.A. No. 609 of 2021 was allowed and disposed of granting leave to the Liquidator to initiate proceedings under arbitration. On 09.10.2023, I.A. No. 1626/2022 was listed on which date, the Adjudicating Authority passed an order directing that Respondent No. 1 herein (Respondent No. 8 in the Application) to be deleted from the array of the party. The Adjudicating -4- Authority observed in the Order that in I.A. No. 609 of 2021 Liquidator has already prayed for initiation of arbitration in which Respondent No.1 was a party. The Adjudicating Authority observed that Liquidator cannot be allowed to take two opposite pleas simultaneously hence the Adjudicating Authority directed deletion of Respondent No. 8 to the I.A. No. 1626 of 2022 from the array of the party.

vii.

Liquidator aggrieved by the Order dated 09.10.2023 passed in I.A. No. 1626 of 2022 has come up in this Appeal.

3. Learned Counsel for the Liquidator submits that the invocation of bank guarantee by Concessionaire after termination of the agreement was wrongful and fraudulent hence the Liquidator has rightly impleaded the Concessionaire as Respondent No. 8 in the Application and the Adjudicating Authority committed err