Delhi High Court
Era Infra Engineering Limited vs National Asset Reconstruction Company … on 1 August, 2025
Author: Subramonium Prasad
Bench: Subramonium Prasad
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 01st AUGUST, 2025
IN THE MATTER OF:
+ W.P.(C) 3228/2025, CM APPL. 15199/2025, CM APPL.
15201/2025, CM APPL. 15496/2025, CM APPL. 21214/2025 &
CM APPL. 24462/2025
ERA INFRA ENGINEERING LIMITED .....Petitioner
Through: Dr. Abhishek Singhvi, Sr. Advocate,
Mr. Dayan Krishnan, Sr. Advocate
with Ms. Kaveri Rawal, Ms. Zinnea
Mehta, Mr. Sukrit Seth and Mr. Yash
Johri, Advocates.
versus
NATIONAL ASSET RECONSTRUCTION COMPANY LIMITED
& ORS. .....Respondents
Through: Mr. Arvind Nigam, Senior,
Mr.Vaibhav Gaggar, Sr. Advocate
with Ms. Smriti Churiwal, Mr. Jaiveer
Kant, Ms. Ambikka Singh, Advocates
for R-1.
Ms. Arundhati Katju, Sr. Advocate
with Ms. Tanushvi, Ms. Swati
Kwatra, Mr. Anshuman Jindal,
Advocates for R-2.
Mr. Ashish Verma, Mr. Saksham
Thareja, Mr. Kartikay Bhargava,
Advocates for R-3 with RP Mr.
Sandeep Goel.
Mr. Siddharth Yadav, Sr. Advocate
with Mr. Manav Goyal, Advocate for
R-4 & 5.
Mr. Krishnan Venugopal, Sr.
Advocate with Mr. Manav Goal,
Advocate.
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CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
JUDGMENT
SUBRAMONIUM PRASAD, J
1. The present writ petition has been filed by the Petitioner seeking a
relief in the nature of writ of mandamus against the Respondent No. 1,
thereby restricting it to take any illegal actions and initiate parallel recovery
proceedings against its subsidiaries before different forums, which will
defeat the purpose of Insolvency and Bankruptcy Code, 2016 (hereinafter
referred to as “IBC”).
2. The facts leading to the filing of the present writ petition are as
follows –
a. The Petitioner is a company incorporated on 03.12.1990 under
the provisions of the Companies Act, 1959. The Petitioner is an
Engineering, Procurement and Construction (EPC) commission
contract company, which mostly operated on Building Operate-
Transfer (BoT) models in India.
b. National Highways Authority of India (hereinafter referred to
as “NHAI”) has issued tenders for the construction,
maintenance and operation of three highway segments i.e.,
Bareilly-Sitapur section of NH-24 (hereinafter referred to as
“Project A”); Muzaffarnagar-Haridwar section of NH-58
(hereinafter referred to as “Project B”); and Delhi-Haryana
Border to the Rohtak section of NH-10 (hereinafter referred to
as “Project C”).
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c. The Petitioner participated in the bidding of the aforesaid
projects and after being declared as successful bidders, the
NHAI has issued a Letter of Awards for each project, wherein
the Petitioner was obligated to incorporate Special Purpose
Vehicles (hereinafter referred to as “SPV”) for the execution
of the aforementioned projects.
d. Accordingly, the Petitioner has incorporated three SPVs as
subsidiaries for the execution of the projects, which are as
follows –
i) Bareilly Highway Project Limited (hereinafter referred to
as “Respondent No. 3”)
ii) Haridwar Highway Project Limited (hereinafter referred
to as “Respondent No. 4”)
iii) West Haryana Highway Project Limited (hereinafter
referred to as “Respondent No. 5”)
e. After the incorporation of Respondent No. 3-5, the SPVs started
executing the contracts. The details of the work to be executed
by Respondents No.3-5 is as under:
Bareilly Highway Project Limited/Respondent No. 3
i. Respondent No. 3 and NHAI have entered into a
Concession Agreement on 22.06.2010 for the completion
of Project A. However, being a parent company, the
Petitioner has also entered into an EPC Agreement on
24.12.2010 with Respondent No. 3 to comply with the
terms of the Concession Agreement.
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ii. In order to complete its work pertaining to Project A, the
Respondent No. 3 has availed various loans from different
banks, with Petitioner being the Guarantor. The same has
been encapsulated in Clause 5.2.6 of the Facility
Agreement dated 16.12.2010, which was entered into by
the Respondent No. 3, State Bank of India (SBI) and
Union Bank of India.
iii. Project A could not be completed. Concession Agreement
dated 22.06.2010 was terminated on 03.05.2019, due to
which the EPC Agreement dated 24.12.2010 also got
terminated.
iv. Aggrieved by the termination of the Agreements,
Respondent No. 3 invoked the arbitration clause against
NHAI claiming an amount of Rs.98,19,18,30,276/-. The
arbitral proceedings with respect to the same has already
reached the stage of conclusion, with Arbitral Tribunal
reserving its award vide Order dated 22.08.2024.
v. Thereafter, an application under Section 7 of the IBC was
filed by the SBI against the Respondent No. 3 and vide
order dated 23.09.2024, the NCLT has admitted the
Respondent No. 3 into Corporate Insolvency Resolution
Process (CIRP). However, when the said order was
challenged, the NCLAT had stayed the CIRP proceedings
against the Respondent No. 3 vide order dated 15.10.2024.
vi. While the said appeal was still pending, the Consortium of
Lenders (CoL) of the Respondent No. 3 assigned its debt
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in favour of Respondent No. 1. Respondent No. 1 is a
Public Sector Undertaking which is in the nature of an
Asset Reconstruction Company, incorporated under the
provisions of the Companies Act, 2013 on 07.12.2021.
vii. Based on the EPC Agreement dated 24.12.2010, Petitioner
has initiated arbitration proceedings against the
Respondent No. 3 and filed an application under Section
17 of the Arbitration and Conciliation Act, 1996
(hereinafter referred to as “A&C Act”) to preserve and
secure the assets and receivables of Respondent No. 3 and
to restrain from getting it disbursed to other parties.
Haridwar Highway Project Limited/Respondent No. 4
i. Similar to the factual situation of Respondent No. 3,
Respondent No. 4 and NHAI has also entered into a
Concession Agreement dated 24.02.2010, which led to the
EPC Agreement dated 24.02.2010 between the Petitioner
and Respondent No. 4.
ii. However, due to certain disputes, NHAI terminated the
said Concession Agreement vide letter dated 25.07.2018.
As previously seen in the case of Respondent No. 3, the
debt of Respondent No. 4 was also handed over to
Respondent No. 1 by the CoL vide Joint Assignment
Agreement dated 28.03.2024.
iii. Thereafter, the Respondent No. 1 preferred an application
under Section 7 of the IBC for the initiation of CIRP
against the Respondent No. 4. The arguments before the
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NCLT have been concluded and the order on the
application was reserved vide order dated 13.12.2025.
West Haryana Highway Project Limited/Respondent No. 5
i. For the incorporation of Respondent No. 5, the Petitioner
and M/s Karam Chand Thapar & Bros. (Coles Sales)
Limited entered into a Memorandum of Understanding on
23.02.2007 and have become the successful bidders for
attaining Project C.
ii. Accordingly, an EPC Agreement dated 21.03.2008 was
entered into between the Petitioner and the Respondent
No. 5 for the execution of Project C as per the specified
terms and conditions mentioned therein.
iii. In order to complete Project C, Respondent No. 5 has
taken various loans from CoL and upon termination of the
said work, the CoL has assigned its debt to the Respondent
No. 5.
f. It is pertinent to note that the Petitioner is a Guarantor for the
loans availed by the SPVs for the execution of Projects A, B
and C.
g. In the interregnum, disputes arose between the Petitioner and
the NHAI and the contracts got terminated resulting in filing of
an application under Section 7 of the IBC before the NCLT.
The said application was admitted by the NCLT. An IRP was
appointed. The IRP, who later became the Resolution
Profession (RP), took steps in accordance with the IBC by
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inviting prospective resolution applicants. Expression of
Interests (EoI) were received from various parties.
h. Respondent No. 2, an engineering consulting firm, submitted its
Resolution Plan for the revival of the Petitioner-company. The
said Resolution Plan was admitted by the CoC with 87.08%
majority votes.
i. Thereafter, the RP filed an application before the NCLT for the
approval of the Resolution Plan and vide order dated
11.06.2024, the Resolution Plan was approved, thereby making
the Respondent No. 2 a Successful Resolution Applicant
(SRA).
j. A Monitoring Committee was formed to ensure the
implementation of the Resolution Plan by 20.09.2024 and has
stated that the Resolution Plan was implemented successfully.
With this statement of satisfaction on the implementation of the
Resolution Plan, the Monitoring Committee dissolved and filed
an application before the NCLT submitting the same. The same
is taken on record by the NCLT on 21.10.2024.
k. After the implementation of the Resolution Plan, notice dated
16.10.2024 was issued for conducting the First Meeting of the
Board of Directors of the Petitioner. The said Meeting was
conducted on 18.10.2024.
l. After its rejuvenation, the main concern of the Petitioner is
regarding the sharing of arbitral proceeds and claims from its
SPVs i.e., Respondent No. 3-5 and for this purpose, an
Agreement for sharing of arbitral proceeds (hereinafter referred
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to as “SAP Agreement”) on 05.09.2024 was entered into
between the Petitioner, Assenting Secured Financial Creditors,
Assenting Unsecured Financial Creditors and Respondent No.
2. Respondent No. 1 is one of the signatories of the said
Agreement.
m. The dispute between the parties arose when Respondent No. 1
has initiated various recovery proceedings with respect to the
Respondent No. 3, 4 and 5 before different forums, despite the
Resolution Plan and the SAP Agreement.
n. The Petitioner has therefore, filed the present Petition with the
following prayers:
“a) Issue a writ of mandamus or any other writ/
direction to Respondent No. 1 restraining the
Respondent No. 1 from initiating any recovery
action against the Respondent No. 3-5 in order to
frustrate the provisions of Resolution Plan of the
Petitioner and SAP Agreement;
b) Issue a writ of mandamus or any other writ/
direction to Respondent No. 1 to comply in full
with the Resolution Plan, as mandated by Section
31 of the Code, ensuring timely and effective
execution of the Plan without any further
hindrance;
c) Issue a writ of mandamus or any other writ/
direction to the Hon’ble DRT, Hon’ble NCLT,
Hon’ble NCLAT to not advance with the
proceedings initiated by Respondent No. 1 against
the Respondent No. 3-5;
d) Pass any other/ further other(s) which this
Hon’ble Court may deem fit and equitable in the
facts of the case and in the interests of justice.”
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3. When the matter came up for hearing before this Court on 27.03.2025,
an order was passed staying all the proceedings before the NCLT and DRT.
Challenging the said order, an application bearing CM APPL. No.
21214/2025 was filed by the Respondent No. 1 seeking vacation of stay on
the said proceedings. The relevant portions of the Order read as under:
“2. Learned counsel appearing on behalf of the
petitioner submitted that the respondent no. 1 has been
acting against the intent of the Resolution Plan as well
as the provisions of the Insolvency and Bankruptcy
Code, 2016 (hereinafter “Code”), thereby initiating
multiple proceedings before various forums such as the
National Company Law Tribunal (hereinafter
“NCLT”) and Debt Recovery Tribunal (hereinafter
“DRT”), which undermines the resolution process of
the petitioner-company.
3. It is submitted that the said Resolution Plan has
already attained finality as it has been approved by the
Committee of Creditors and the NCLT. It is submitted
that the said actions of respondent no. 1 are against
the very provisions of the Resolution Plan, which were
duly approved by the banks that have assigned their
debt to respondent no. 1.
4. It is further submitted that having stepped into the
shoes of the original lenders, the respondent no. 1
cannot take a contradictory stance and adopt decisions
that are inconsistent with those taken by its assignors,
especially while approving a Resolution Plan, which
categorically lays down the due course of resolution of
the petitioner-company.
5. It is submitted that the respondent no. 1 cannot
initiate parallel proceedings to recover the amount
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prolonged litigation, thereby leading to the effective
liquidation of the petitioner-company.
6. In view of the foregoing submissions, it is prayed
that the proceedings before the concerned NCLT and
concerned DRT may be stayed till the next date of
hearing.
7. Learned senior counsel for the respondents no. 2, 4
and 5, appearing on advance notice, have not
contradicted the submissions advanced on behalf of the
petitioner.
8. Heard learned counsel for the parties and perused
the material placed on record.
9. Considering the contents of the instant petition as
well as the submissions advanced on behalf of the
parties, this Court is of the view that the matter
requires consideration.
10. Issue notice. Learned counsel appearing on behalf
of the respondents no. 2, 4 and 5 accepted notice.
11. Issue notice to respondents no. 1 and 3 through all
permissible modes on filing PF within one week.
12. Given that the issues raised by the learned counsel
for the parties require consideration and that the
learned counsel for the respondent nos. 2, 4 and 5 has
not contradicted the submissions advanced by the
learned counsel for the petitioner, this Court is
inclined to keep the proceedings before the concerned
NCLT and concerned DRT in abeyance.
13. Accordingly, the proceedings before the concerned
NCLT and concerned DRT shall be kept in abeyance
till the next date of hearing.”
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4. Respondent No. 1 has filed the said application challenging the
maintainability of the present Writ Petition stating that the Petitioner has to
take recourse to the remedies available to it under the IBC and that the Writ
Court while exercising its jurisdiction under Article 226 of the Constitution
of India cannot entertain the present writ petition in view of the efficacious,
alternate remedy available to the Petitioner under the IBC.
5. Respondent No. 1 has also prayed for vacation of stay granted by this
Court in its order dated 27.03.2015 contending that substantial amount of
money is to be received by the Respondent No.1 from Respondents No.3, 4
and 5.
6. Mr. Arvind Nigam, learned Senior Counsel for the Respondent No. 1,
contends that the present Petition is not maintainable in view of the alternate
remedies available to the Petitioner under the IBC. He states that the
Petitioner primarily seeks restraint on the Respondent No.1/Applicant,
which is an asset reconstruction company, from continuing legal
proceedings before forums under the Recovery of Debts and Bankruptcy
Act, 1993, (hereinafter referred to as “RDDB Act”) or under the IBC by
exercising its legal rights against Respondents No.3, 4 & 5. He states that
Respondent Nos.3, 4 & 5 collectively owe a whopping amount of Rs.7800
crores. He also states that the Petitioner has already approached the NCLAT
by moving an application in the Petition filed by the ex-Directors of the old
avatar of the Petitioner-company challenging the Resolution Plan approved
by the NCLT, wherein all the facts, which have been stated in the present
Writ Petition qua Respondent No.3, had been raised. He states that the said
application has been disposed of by the NCLT vide Order dated 24.03.2025
and the remedy of the Petitioner is to challenge the said Order before the
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appropriate forum. He states that even after exhausting its right to appeal
before the NCLAT and failing to get any favourable order, the Petitioner
cannot approach this Court without exercising its remedy under the IBC
itself. He has laid emphasis on the proposition that the IBC is a separate
code in itself.
7. It is submitted that if the grievance of the Petitioner is that the
initiation of recovery proceedings of the Respondent No. 1 against the
Respondent Nos. 3, 4 and 5 directly affects the implementation plan of the
Petitioner, then only the forums under the IBC would be in a position to
appreciate this contention and modify the plans appropriately and this Court
under Article 226 of the Constitution of India cannot exercise its jurisdiction
in such a scenario. He states that just because the Respondent No.1 is backed
by the Government, that alone would not be sufficient to enable the
Petitioner to approach this Court by invoking Article 226 of the Constitution
of India. He further states that Respondent No.1 is exercising its right under
the various provisions of the IBC and the actions of the Respondent can only
be challenged before the forums where the actions have been initiated by the
Respondent No.1 and not before this Court.
8. He states that the present case does not involve any question of public
law remedy. It is submitted that the Respondent No. 1 is only exercising its
contractual rights against Respondents No. 3-5 and therefore, the forums
created under relevant statutes alone would be in a position to adjudicate the
disputes and only those forums would have to be approached for the
redressal of those rights, if any, of the Petitioner. Hence, it is contended that
the present petition is not maintainable under law.
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9. He further states that the issues which have been raised in the Petition
are that the Resolution Plan of the Petitioner in its old form will be affected
if the Respondent No.1 appropriates the amount received in the award. He
states that this issue can only be dealt with by those authorities who have
approved the plan. He states that even assuming that there is ambiguity in
the plan, it can only be resolved by the authorities under the IBC. He states
that it is settled law that the Writ Petition could not be invoked with respect
to the matters which are to be adjudicated by the specialized forums under
the Act.
10. Learned Senior Counsel also states that the Petitioner is indulging in
forum shopping. It is stated that the Petitioner approached the NCLT on
23.07.2024, where it made submissions that it intended to settle the debt of
Respondent No.3, however, the NCLT did not give indulgence to the
Petitioner stating it has no locus. He states that this order was not challenged
by the Petitioner and has accordingly attained finality. He further states that
the Petitioner approached the NCLAT by way of an Intervention
Application dated 22.10.2024 and an Additional Affidavit dated 18.11.2024
was filed in the proceedings qua the Respondent No. 3. He states that the
Petitioner appeared on 8 dates from 25.10.2024 before the NCLAT, which
disposed off its application without any finding to the effect that
NCLT/NCLAT does not have jurisdiction to deal with the issues raised in
the intervention application. He states that this order has also not been
challenged by the Petitioner be resorting to the remedies provided under
law. He states that the Petitioner simply chose to approach this Court
invoking the writ jurisdiction without even disclosing the NCLT and
NCLAT orders in the Writ Petition. He further states that the stay that has
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been obtained by the Petitioner was obtained completely in collusion with
the Respondents No.2, 3 & 4 behind the back of the Petitioner without
presenting the correct facts and this Court has been mislead into passing the
interim order.
11. The contentions raised by the Respondent No. 1 are also supported by
the learned Counsel for the Respondent No. 3.
12. Per Contra, Dr. Abhishek Manu Singhvi, learned Senior Counsel for
the Petitioner, contends that the Petitioner, an EPC Contractor, was awarded
multiple highway projects by the NHAI and incorporated SPVs, i.e.
Respondent Nos.3, 4 & 5 solely to meet the NHAI’s tender conditions. He
states that CIRP proceedings were initiated against the Petitioner in the year
2018 and a Resolution Plan was submitted by the Respondent No.2 which
has been approved by the CoC and NCLT. He states that as a part of the
restructuring plan, the money which was to be received by the SPVs under
the Arbitration dispute between the NHAI and the SPVs, should ideally
come to the pocket of the Petitioner in its new avatar. He states that SAP
Agreement was entered into between the Petitioner, Respondent Nos.3-5,
the lenders and the Respondent No.1, wherein it was agreed that the awards
received by Respondents No.3-5 will go to Petitioner and Respondent No.2.
He states that this fact was in the knowledge of the Banks and the
Respondent No.1, who are the signatories to the Resolution Plan. He states
that the debt of Respondents No.3, 4 & 5 were assigned to Respondent No.1,
which also became a party to the SAP Agreement. He states that all the
parties, including the Respondent No.1 had agreed that the arbitral proceeds
of the SPVs will be included in the Resolution Plan of the Petitioner and will
be shared with the Assenting Financial Creditors. He states that despite
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being bound by the Resolution Plan and the SAP Agreement, Respondent
No.1, in contravention of the provisions of the IBC, more particularly
Section 31, has initiated multiple proceedings, including insolvency and debt
recovery, against Respondents No.3 to 5 before the NCLT and DRT, in
breach of the agreed terms therein.
13. He further states that Respondent No.1 being the instrumentality of
the State is bound by Article 14 of the Constitution of India and, therefore,
the Petitioner has invoked the writ jurisdiction of this Court seeking
mandamus against the Respondent No.1 restraining Respondent No.1 from
acting in breach of the SAP Agreement and to ensure compliance of the
Resolution Plan.
14. Learned Senior Counsel for the Petitioner further contends that
Petitioner is not challenging the admission of the SPVs into CIRP by the
Adjudicating Authority but the action of Respondent No.1 of filing the
Petition under Section 7 of IBC. He states that the jurisdiction of the NCLT
is summary in nature and limited to determining the existence of a financial
debt and default and no person other than the financial creditor and the
corporate debtor has the right to be heard at the pre-admission stage and
third-party intervention is not permitted, therefore, the Petitioner, who is
neither a corporate debtor nor a financial creditor can be heard before the
NCLT. He further states that since the Petitioner’s intervention application
was not entertained by the NCLAT, and the Petitioner realised that it was
raising its grievances before a forum which is not competent to entertain
such grievances, and the Petitioner had no other alternate efficacious remedy
other than approaching this Court under the writ jurisdiction.
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15. He states that the issues raised by the Petitioner squarely falls within
the realm of public law remedy and the reliefs sought for by the Petitioner
cannot be granted by the NCLT, NCLAT, DRAT, or even the Apex Court in
its appellate jurisdiction under the IBC, which is structured, limited, and
does not permit adjudication of public law claims. He states that even the
Apex Court, while exercising its jurisdiction under the provisions of the
IBC, cannot cover public law or judicial reviews of administrative actions.
He states that the Apex Court in Kalyani Transco v. Bhushan Power & Steel
Ltd., 2025 SCC OnLine SC 1010, has acknowledged the Judgment of the
Apex Court in GLAS Trust Co. LLC v. BYJU Raveendran, (2025) 3 SCC
625, and went to clarify that NCLAT, being an appellate authority, is limited
to the jurisdiction exercised by the NCLT and it cannot exceed its
jurisdiction by entertaining matters beyond the NCLT’s original jurisdiction.
He submits that the expression “any person” under Section 61 of the IBC,
must be construed narrowly to include only those persons who have a right
to initiate proceedings under Sections 7 or 9 of the IBC and it cannot be
expansively interpreted to include shareholders or Investors in the corporate
debtor. He states that the Petitioner would become remediless if the present
Petition is not entertained.
16. He states that the NCLT, having no residuary jurisdiction to
adjudicate disputes arising de hors the insolvency of the corporate debtor,
cannot entertain the present matter where the Resolution Plan of the
Petitioner is not impacting, but rather being undermined by the CIRP of its
SPVs. He states that as far as Respondent No.5 is concerned, apart from
NCLT, the Respondent No.1 is also pursuing the proceedings against
Respondents No.3 to 5 before the DRT and neither the NCLT and NCLAT
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has the jurisdiction to injunct such proceedings and only this Court, in
exercise of its writ jurisdiction, can issue a mandamus to restrain such mala
fide actions. He states that since the forums under the IBC or the DRT
cannot entertain the grievances of the Petitioner, the Petitioner is justified in
approaching this Court by filing the present Writ Petition under Article 226
of the Constitution of India.
17. Learned Counsel for the Petitioner also contends that the present
Petition, as framed, is maintainable and while adjudicating the issue of
maintainability in an application challenging the maintainability, this Court
is not required to delve into the fact of relief or the precise percentage of the
arbitral proceeds to be disbursed and this has to be decided on the merits of
the matter. He further states that Respondent No.1 has admitted that the
arbitral proceeds of the SPVs form part of the Resolution Plan submitted by
the Petitioner and further, that Respondent No.1 is a signatory to the SAP
Agreement and, therefore, Respondent No.1 cannot question the
maintainability of the present Petition. He further states that the issue of
forum shopping and collusion are false and contrary to the record. He states
that the Respondent No.1 has to file its counter affidavit and take a stand on
the Resolution Plan of the Petitioner and the SAP Agreement. He states that
the question of maintainability can be seen after the Respondent No.1 has
filed its counter.
18. He states that even if an alternate remedy is available, that alone
would not oust the jurisdiction of this Court to entertain the present Petition
under Article 226 of the Constitution of India. He contends that Respondent
No.1 being the instrumentality of the State under Article 12 of the
Constitution of India cannot act arbitrarily and its arbitrary and mala fide
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actions can be looked into only by this Court. He states that Respondent
No.1 being a “State” is bound by higher standard of fairness in its actions
and since Respondent No.1 has acted arbitrarily and mala fidely, the present
Writ Petition is maintainable. Reliance has been placed by the learned
Senior Counsel for the Petitioner on the judgment of the Apex Court in
Shrilekha Vidyarthi (Kumari) v. State of U.P., (1991) 1 SCC 212. He further
states that the amounts to be shared under the SAP Agreement will have to
be looked into and only then can the present Writ Petition be adjudicated.
He also states that all the concerned parties have been arrayed in the present
Petition.
19. The contentions raised by the learned Senior Counsel for the
Petitioner are supported by Respondent No. 2, 4 and 5.
20. Heard learned Senior Counsels for the parties and perused the
material on record.
21. The Petitioner has approached this Court primarily to restrain
Respondent No.1 from initiating any recovery action against Respondents
No.3 to 5 contending that any recovery against Respondents No. 3 to 5 will
frustrate the Resolution Plan dated 20.09.2022 restructuring the Petitioner
and the SAP Agreement dated 05.09.2024 in which Respondent No.1 is also
a signatory. The SAP Agreement signifies that the amounts (if any) to be
received under the arbitral proceedings, which are pending between
Respondent No.3 to 5, are not appropriated by Respondent No.1 but rather
shared by Petitioner and other financial institutions in terms of the
Resolution Plan dated 20.09.2022 and SAP Agreement. The Petitioner states
that Respondent No.1 being the instrumentality of the State, cannot be
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permitted to resile from the SAP Agreement and cannot be permitted to
thwart the Resolution Plan.
22. It is further stated that even the DRT and the authorities under the
RDDB Act would not be in a position to sit in appeal against their
Resolution Plan nor can they sit as an authority over the decisions taken by
the forums functioning under the IBC.
23. It is the case of the Petitioner that this petition cannot be dismissed at
the threshold only on the ground of maintainability and this Court has to go
into the facts of the case and only after satisfying itself that the parties are
not covered by the Resolution Plan dated 20.09.2022 or the SAP Agreement,
a decision can be taken.
24. Per contra, the case of Respondent No.1 is that the Petitioner has
engaged in forum shopping and as far as the Petitioner is concerned, they
should have approached the forums under the IBC, but have chosen to
approach this Court by filing the present writ petition, instead of exhausting
the available remedies under the IBC itself.
25. Respondent No.1 also states that if the recovery proceedings initiated
against the Respondent No. 3 is at variance with the Resolution Plan dated
20.09.2022, then the authorities who have approved the Plan are the correct
authority to consider this aspect and come to a solution to the problem, if
any, that exists in accordance with law. Respondent No.1 also contends that
as far as Respondent No.4 is concerned, the matter is still pending before the
NCLT and proceedings being in rem, the Petitioner can avail the remedies
provided under the IBC once the order is passed by the NCLT. It is also the
case of Respondent No.1 that as far as Respondent No.5 is concerned, the
petition is premature inasmuch as no orders have been passed against
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Respondent No.5 and these arguments can be taken before the authorities
under the provisions of the RDDB Act. It is also stated that no question of
public law remedy arises in this case as the Petitioner is exercising its
remedies available to it under the IBC.
26. According to the Petitioner, the Respondent No. 1 has to adhere to the
Resolution Plan dated 20.09.2022 and the SAP Agreement and cannot resort
to the remedies available under the provisions of the statute. It is anyway
settled that availability of alternate remedy does not bar entertaining a
petition under Article 226 of the Constitution of India.
27. The facts of the case reveal that in the year 1990, the Petitioner was
incorporated as an EPC commission contractor mostly operating on BoT
basis of various projects. The Petitioner was awarded tenders by the NHAI
and as required by the tenders, SPVs were incorporated by the Petitioner
which are Respondent No.3, 4 and 5 herein. The Petitioner established
Respondent No.3 for the Bareilly Highways Project, Respondent No.4 for
the Haridwar Highways Project and Respondent No.5 for West Haryana
Highways Project. Respondents No.3 to 5 have been incorporated only for
the purposes of executing the projects. In the meantime, the contracts with
the NHAI got terminated, CIRP proceedings were initiated against the
Petitioner under the provisions of the IBC. An IRP was appointed and
Respondent No.2 was the SRA. The Resolution Plan dated 20.09.2022 was
cleared by the NCLT vide order dated 11.06.2024.
28. The SAP Agreement was entered into between Respondent No.2,
Petitioner and other financial institutions. In the meantime, the debts taken
by Respondents No.3 to 5 were assigned to Respondent No.1 and
Respondent No.1 also was a signatory to the SAP Agreement. Respondent
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No.1 initiated proceedings against Respondents No.3 and 4 before the
NCLT. As far as Respondent No.3 is concerned, the Resolution Plan has
attained finality. The said Plan was challenged before the NCLAT when the
Petitioner moved an application for intervention. Vide Order dated
24.03.2025, the appeal filed by the erstwhile Director of Respondent No.3
was dismissed. It is pertinent to note that there is no discussion on the
application for intervention filed by the Petitioner therein.
29. The Petitioner has approached this Court by filing a petition under
Article 226 of the Constitution of India stating that the Petitioner had
approached a wrong forum and the only remedy available to the Petitioner
was to approach this Court. Vide Order dated 27.03.2025 passed by this
Court, stay was granted in favour of the Petitioner restraining Respondent
No.1 from proceeding against Respondents No.3, 4 and 5 before the forums
under the IBC and RDDB Act. An application has been filed by Respondent
No.1 for vacation of stay and for dismissal of the writ petition on the ground
that the writ petition is not maintainable.
30. One of the primary contentions made by the Petitioner with respect to
the maintainability of the instant petition was that the Petitioner, not being a
corporate debtor or financial creditor, cannot approach the forums under the
IBC at the stage of pre-admission.
31. On this aspect, the Apex Court, while enumerating as to what is the
nature of proceedings initiated under Section 7 and 9 of the IBC, has
observed in GLAS Trust Company LLC v. Byju Raveendran & Ors., 2025
(3) SCC 625, that though only a corporate debtor or a creditor being
operational or financial can initiate proceedings under the IBC but once the
application gets admitted, it becomes proceedings in rem and once it
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becomes proceedings in rem, persons who are likely to be affected by those
proceedings are entitled to maintain proceedings before the authorities, at
least before the NCLT. While dealing with Section 62 of the IBC which
deals with appeals to the Supreme Court wherein any person is aggrieved by
the order of the NCLAT can file an appeal to the Supreme Court, in Glas
Trust (supra) the Supreme Court has explained the phrase “any person” as
under:-
“75. The provision stipulates that “any person” who is
aggrieved by the order of Nclat may file an appeal
before the Supreme Court within the prescribed
limitation period. Similar language is used in Section
61 IBC, which provides for appeals to Nclat from
orders of NCLT. [ “61. Appeals and appellate
authority.–(1) Notwithstanding anything to the
contrary contained under the Companies Act, 2013 (18
of 2013), any person aggrieved by the order of the
adjudicating authority under this part may prefer an
appeal to the National Company Law Appellate
Tribunal.”(emphasis supplied)] The use of the phrase
“any person aggrieved” indicates that there is no rigid
locus requirement to institute an appeal challenging an
order of NCLT, before Nclat or an order of Nclat,
before this Court. Any person who is aggrieved by the
order may institute an appeal, and nothing in the
provision restricts the phrase to only the applicant
creditor and the corporate debtor. As noted above,
once CIRP is initiated, the proceedings are no longer
restricted to the individual applicant creditor and the
corporate debtor but rather become collective
proceedings (in rem), where all creditors, such as the
appellant, are necessary stakeholders. The appellant is
not an unrelated party to CIRP, but is in fact, an entity
whose claims had been verified by the IRP vide letter
dated 19-8-2024. The appellant who claims to be a
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there were round tripping of the funds, and the
prioritisation of the debts of the second respondent, an
operational creditor.”
32. To the very same effect, the Supreme Court in Independent Sugar
Corporation Limited v. Girish Sriram Juneja & Ors., 2025 (5) SCC 209, has
observed as under:-
“21. At the outset, the preliminary objection regarding
the locus standi of the appellant(s) to prefer the present
appeal(s) must be dealt with.
22. Section 61 IBC provides the statutory framework
for appeals against orders of the adjudicating
authority i.e. NCLT, stipulating that “any person
aggrieved” by such an order may prefer an appeal to
the appellate authority i.e. Nclat in this case. Further,
Section 62 extends this right of appeal to the Supreme
Court.
23. Similarly, Section 53-B of the Competition Act
provides that “any enterprise or any person
aggrieved” within the statutory framework may file an
appeal against any order of CCI to the Appellate
Tribunal i.e. Nclat. Section 53-T further extends this
right of appeal to the Supreme Court against any
decision or order of Nclat.
24. Once the CIRP is initiated, the nature of
proceedings are no longer in personam but rather
become in rem. In light of the same, the expression
“any person aggrieved” in the context of IBC has been
held to be indicative of there being no rigid locus
requirements to institute an appeal challenging an
order of NCLT before Nclat or an order of Nclat
before this Court. [GLAS Trust Co. LLC v. Byju
Raveendran, (2025) 3 SCC 625 : (2024) 247 Comp
Cas 687] Similarly, in the context of the Competition
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of practices that are contrary to the provisions of the
Competition Act, could be said to be “aggrieved”.
[Samir Agrawal v. CCI (Cab Aggregators Case),
(2021) 3 SCC 136] Therefore, the term “any person
aggrieved” appearing in Section 62 IBC and Section
53-T of the Competition Act must be understood widely
and not in a restricted fashion.
25. In the present case, the appellant as an
unsuccessful resolution applicant whose resolution
plan could have otherwise been approved by CoC,
satisfies the requirement of being aggrieved. This
preliminary locus standi objection vis-à-vis the
appellant, therefore, does not merit acceptance.”
33. The Apex Court therefore categorically states that once the CIRP is
initiated, the nature of proceedings is no longer in personam but rather
become in rem and the expression “any person” aggrieved in the context of
IBC has been held to be indicative of locus to institute an appeal challenging
the order of the NCLT before the NCLAT or an order of the NCLAT before
the Apex Court.
34. The Petitioner has already challenged the Resolution Plan against
Respondent No.3 before the NCLAT by moving an application for
intervention. The said application has been filed in the appeal filed by the
erstwhile Director of Respondent No.3 challenging the Resolution Plan
dated 20.09.2022 before the NCLAT in Appeal No. 1930/2024 and that the
appeal has been dismissed on 24.03.2025 but there is no discussion
whatsoever on the application for intervention filed by the Petitioner. After
having availed of the remedy before the NCLT, the Petitioner has to exhaust
the remedy under the IBC or even file a review against the Order dated
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24.03.2025 saying that the application of the Petitioner has not been
adjudicated on merits.
35. The argument raised by Dr. Singhvi, learned Senior Counsel for the
Petitioner, that the Petitioner approached this Court since Respondent No.1
is the instrumentality of the State, and therefore, it is a public law remedy,
does not impress this Court. The question that arises in this case is as to
whether the Resolution Plan of Respondent No.3 would directly impinge on
the Resolution Plan dated 20.09.2022 of the Petitioner and the SAP
Agreement. In the opinion of this Court, this question can be best be
addressed by the authorities under the IBC because they are approvers of the
Resolution Plan of the Petitioner.
36. The question here is not a judicial review of an administrative action
of the instrumentality of the State but interpretation, analysis and
implementation of a Resolution Plan which should be best left to the expert
body formed under a Special Law and not under Article 226 of the
Constitution of India.
37. Undoubtedly, alternate remedy does not take away the right of the
Petitioner to approach the High Court, however, the High Court ordinarily
restrains itself from entertaining such writ petitions where there are
specialised bodies which have been created only for dealing with certain
provisions arising under the Special Statutes.
38. In Bank of Baroda v. Farooq Ali Khan & Ors., 2025 SCC OnLine SC
374, while dealing with questions arising specifically under the RDDB Act,
when the writ petition was entertained by the High Court, the Apex Court
has observed as under:-
“10. In light of this statutory scheme, which has been
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view that the High Court incorrectly exercised its writ
jurisdiction as : first, it precluded the statutory
mechanism and procedure under the IBC from taking
its course, and second, to do so, the High Court
arrived at a finding regarding the existence of the debt,
which is a mixed question of law and fact that is within
the domain of the Adjudicating Authority under Section
100 of the IBC.”
39. In the same vein, the Apex Court in Mohammed Enterprises
(Tanzania) Ltd. v. Farooq Ali Khan & Ors., 2025 SCC OnLine SC 23, has
observed as under:-
“15. Apart from delay and laches, High Court should
have noted that Insolvency and Bankruptcy Code is a
complete code in itself, having sufficient checks and
balances, remedial avenues and appeals. Adherence of
protocols and procedures maintains legal discipline
and preserves the balance between the need for order
and the quest for justice. The supervisory and judicial
review powers vested in High Courts represent critical
constitutional safeguards, yet their exercise demands
rigorous scrutiny and judicious application. This is
certainly not a case for the High Court to interdict
CIRP proceedings under the Insolvency and
Bankruptcy Code.”
40. There are various other judgments enunciating the very same
principle which this Court is not referring in view of the settled position of
law.
41. As far as Respondent No.4 is concerned, the proceedings are pending
before the NCLT and it is open for the Petitioner to raise the very same
objections before the NCLAT highlighting as to how the Resolution Plan
dated 20.09.2022 of the Petitioner would be adversely affected by any other
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Resolution Plan involving the arbitral awards, which according to the
Petitioner has to go to the Petitioner and Respondent No.2.
42. Similarly, as far as Respondent No.5 is concerned, this Court is of the
opinion that the writ petition is premature inasmuch as no adverse orders
have been passed by the authorities under the RDDB Act. It is open for the
Petitioner to raise these objections before the forums under the RDDB Act
and it is free to avail appropriate remedies in accordance with law.
43. Viewed in this manner, this Court is therefore not inclined to refer to
the various provisions of the SAP Agreement, as according to this Court, it
is only the specialized forums under IBC which are competent to analyse the
Resolution Plans and the effect of any other Resolution Plan over the
existing Resolution Plan.
44. Resultantly, the stay Order dated 27.03.2025 stands vacated. This
Court is not inclined to entertain the writ petition.
45. The petition is disposed of along with pending application(s), if any.
SUBRAMONIUM PRASAD, J
HARISH VAIDYANATHAN SHANKAR, J
AUGUST 01, 2025
Rahul/hsk/SM
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