JUDGEMENT

ASHOK BHUSHAN, J. This Appeal has been filed against two orders passed by the Adjudicating Authority (National company Law Tribunal), Mumbai Bench, Court III i.e. 29.09.2022 in I.A. No.2247/2021 filed by the Appellant as well -2- as order dated 29.09.2022 passed in I.A. No.665/2022 filed by the Resolution Professional for approval of the Resolution Plan. The Adjudicating Authority vide order dated 29.09.2022 rejected the I.A. No. 2247/2021 filed by the Appellant for admitting his claim as Financial Creditor and by order of the same date allowed the application of the Resolution Professional approving the Resolution Plan. Brief facts of the case necessary to be noticed for deciding this Appeal are:

(i) The CIRP commenced against the Corporate Debtor - Dolphin Offshore Enterprises (India) Limited by order dated 16.07.2020. (ii) Public announcement was made on 21.07.2020, in pursuance of which Appellant submitted its claim in Form ‘C’ on 31.07.2020 raising a claim of Rs.50 Lakhs as financial debt against the Corporate Debtor.

(iii) The Resolution Professional informed the Appellant by email dated 30.07.2021 that debt of Appellant cannot be termed as financial debt and he may file his claim as operational debt.

(iv) In CIRP, an I.A. No. 2247/2021 was filed by the Appellant seeking a direction to admit the claim of the Appellant as financial creditor and to reconstitute the Committee of Creditors (CoC).

(v) In the meantime, Resolution Plan of a Resolution Applicant was approved by the CoC on 17.02.2022 and the Resolution -3- Professional filed an application being I.A. No. 665/2022 before the Adjudicating Authority for approval of the Resolution Plan.

(vi) Appellant has entered into an agreement with the Corporate Debtor on 24.10.2018 for jointly submitting a bid guarantee. With respect to which agreement the Appellant has given an amount of Rs.50 Lakhs towards, the Bid Bond Bank Guarantee, which was claimed as financial debt.

2. Learned counsel for the Appellant challenging the order contends that the amount which was given was a financial debt given to the Corporate Debtor to enable the Corporate Debtor to submit Bid Bond Bank Guarantee to the ONGC. Resolution Professional as well as the Adjudicating Authority committed error in rejecting the claim as financial debt. It is further submitted that in any view of the matter the amount of Rs.50 Lakhs was given to the Corporate Debtor in trust and the amount was for specific purpose and the amount which was given in trust cannot be treated to be part of the assets of the Corporate Debtor and should be kept apart in view of the provisions of the I&B Code.

3. Learned counsel for the Respondent refuting the submissions of learned counsel for the Appellant contends that the Adjudicating Authority has rightly held that the claim of the Appellant was not a financial debt since the Appellant has given his share of Bid Bond Bank Guarantee which was rightly held to be an operational debt. Insofar as submission of the -4- Appellant that amount was given in trust to the Corporate Debtor, neither any such pleading was made nor any such submission was made in the proceedings before the Adjudicating Authority and this submission cannot be entertained which has no foundation.

4. We have considered the submissions of learned counsel for the parties and perused the record.

5. The agreement between the Appellant and the Corporate Debtor dated 24.10.2018 which is the geniuses of the claim of the Appellant provides as follows:

“AGREEMENT This Agreement is made on 24th day of October month of year 2018 and is to be considered as an Appendix to the MOU signed between both the parties.

BY AND BETWEEN Dolphin Offshore Enterprises (India) Limited a company duly incorporated and validly existing under the laws of India having its office at, having its registered office at 1001, Raheja Centre, 214 Nariman Point, Mumbai – 400 021 (hereinafter referred to as “Member 1”), w