Inthe NationalCompany LawTribunal Kolkata Bench, (Court-II), Kolkata In IA(IB) No. 1317/ (KB)/2023 CP(IB) No. 2074/(KB)/2019 An Applicationunder Section60(5) ofInsolvency andBankruptcy Code, 2016read withRule11of theNCLT,Rules, 2016;

IntheMatter of:

Sanjeev Kumar Mishra, residing at Village -Narayanur, Post-Sakri, Darbhanga, Bihar, Pin- 847239.

…OperationalCreditor And Abhijeet Hazaribagh Toll RoadLimited, having itsregistered office at FE-83, Sector -III, SaltLake City, Ground Floor, Kolkata- 700106,West Bengal.

….Corporate Debtor And In thematter of:

Sanjeev Kumar Mishra, residing at Village -Narayanur, Post-Sakri, Darbhanga, Bihar, Pin- 847239.

….For the Applicant/ OperationalCreditor Versus Nirmal Kumar Agarwal, Liquidator of Abhijeet Hazaribagh Toll Road Limited, having its registered office at Shreekunj, Block-E, 83,Golaghata Road,North 24Parganas, West Bengal - 700048 and also at 24, Tara Chand Dutta Road Street, Near Moonlight Cinema, Kolkata- 700073.

….Respondent Date ofHearing:27.09.2023 Date ofPronouncement oforder: 10.10.2023 Coram:

Smt Bidisha Banerjee : Member (Judicial)

ShriArvind Devanathan : Member (Technical)

Counselappeared physically / through video Conferencing

1. Mr. JoySaha, Sr. Adv. ]For theApplicant in IA 1317of2023

2. Mr. Avishek Guha, Adv. 3. Ms.Arunika Dutta, Adv.

1. Mr. Abhrajit Mitra, Sr. Adv. ]For theRespondents

2. Mr. D.N.Sharma, Adv.

3. Mr. DebarthaCharaborty, Adv.

4. Mr. K.Saraf, Adv.

ORDER

Per Bidisha Banerjee, Member (Judicial):

1. Heard theLd.Sr. Counsels /Counsels onboth sides.

2. This application has been preferred by Abhijeet Hazaribagh Toll Road Limited.

The said Operational Creditor has challenged the propriety of the decision taken by Stakeholders Consultation Committee at its meeting dated 10.07.2023, whereby and whreunder the said Committee has decided to seek benefit of Vivad Se Vishwas-II (Contractual Disputes) Scheme, being Annexure ‘F’ to the Application.

3. Contentions oftheApplicant:

a.Ld. Sr. Counsel Mr. Joy Saha appearing for the Operational Creditor would submit that the Arbitral Tribunal has been pleased to award an amount of Rs. 234,59,51,401.46 against NHAI which is under challenge before the Hon’ble Delhi High Court, in two separate petitions preferred by the Corporate Debtoras well as NHAI.

b. The total claim of the Financial Creditor is to the tune of Rs. 555 crores (Principal plus interests) which can be recovered from the NHAI once Hon’ble Delhi High Court passes an order, the correction of the calculations within, whereas the settlement entered into with the NHAI by the Liquidator at the instance of the Stakeholders Consultation Committee is for an amount of Rs. 190 Crores (65%) amounts to a hair cut of 35%

which is not inthe interest ofthebusiness.

c.Ld. Sr. Counsel for the Applicant further states that once the Code, through section 35(1) (f) and through Liquidation Regulations, 32, 32A , 37 and 37A has provided a mode and manner of sale of the Actionable Claims / Assets of the Corporate Debtor, no other mode or manner can be permitted. In this regard, the Ld. Sr. Counsel for the Applicant relies on the judgment of Hon’ble Apex Court in the case of Union of India vs. Mahendra Singh, wherein the Hon’ble Apex Court, reiterated the principle laid down in Nazir Ahmad Vs. King Emperor that “where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. All other modes of performance are necessarilyforbidden.”

d. Ld. Sr. Counsel for the Applicant further asserts that the existence of Stakeholders Consultation Committee is for the purpose of collating and verifying claims and any decision by SCC is merely advisory having no bearing on the liquidator, thus based on a decision of the SCC amnesty, thus cannot beclaimed.

e.Ld. Sr. Counsel for the Applicant further submits that the Respondent Liquidator is duty bound to follow the process as envisaged under the Code and the Liquidation Regulations and the Liquidation process is a step-by step process a