B.R.GAVAI, J. - (1.) This appeal challenges the judgment and order passed by the National Company Law Appellate Tribunal (hereinafter referred to as the "NCLAT") dated 21st December 2018, thereby allowing the appeal filed by respondent herein. The respondent herein had preferred an appeal being Company Appeal (AT) (Insolvency) No. 582 of 2018, challenging the order passed by the National Company Law Tribunal (hereinafter referred to as the "NCLT") dated 26th July 2018, thereby rejecting the petition being C.P. (IB)-20(MB)/2018, filed by the respondent herein under Section 9 of the Insolvency and Bankruptcy Code (hereinafter referred to as the "IBC"). By the impugned order dated 21st December 2018, the NCLAT while allowing the appeal, has remitted back the matter to the NCLT with a direction to admit the petition filed by the respondent herein under Section 9 of the IBC after giving limited notice to the appellant herein so as to enable it to settle the claim.
(2.) The facts in brief giving rise to the present appeal are as under:- The Government of India extended Dollar Line of Credit (hereinafter referred to as the "LoC") of USD 150 Million to the Republic of Sudan through Exim Bank of India (hereinafter referred to as the "Exim Bank") for carrying out Mashkour Sugar Project in Sudan. This was in two tranches of USD 25 Million and USD 125 Million. On 26th January 2009, the first tranche of USD 25 Million was executed between Republic of Sudan and Exim Bank for financing the Mashkour Sugar Project. On 11th October 2009, Mashkour Sugar Company Limited, Sudan (hereinafter referred to as the "Mashkour") entered into an agreement with the respondent-Overseas Infrastructure Alliance (India) Private Limited (hereinafter referred to as the "Overseas") for USD 149,975,000 to be financed by Exim Bank. As per the said agreement, Mashkour was to nominate a sub-contractor. A subsequent agreement was entered into on 14th April 2010, between Mashkour and Overseas for payment of USD 25 Million to Overseas towards "design and engineering package and plant civil package including site mobilization". In response to the invitation by Mashkour, the appellant-Kay Bouvet Engineering Limited (hereinafter referred to as the "Kay Bouvet") submitted its bid as a sub-contractor for supply, erection and completion of the Sugar Plant at Sudan, which was accepted by Mashkour. On 18th December 2010, a Memorandum of Understanding (hereinafter referred to as the "MoU") was entered into between Mashkour, Overseas and Kay Bouvet at Khartoum, Sudan. The said MoU provided that the contract has to be governed by the laws of Sudan. The same MoU also defined roles and responsibilities of each of the parties. On the same date, a Tripartite Agreement was also executed between all the three parties vide which, Kay Bouvet was appointed as a subcontractor for executing the whole work of designing, engineering, supply, installation, erection, testing and completion of Factory Plant for Mashkour Sugar Company for an amount of USD 106.200 Million.
(3.) On 29th March 2011, Overseas vide an e-mail sent to Mashkour confirmed that under the Tripartite Agreement, Mashkour was to release payment of first tranche of LoC to Overseas and the Overseas in turn was to release payment of USD 10.62 Million to Kay Bouvet on submission of Advance Bank Guarantee and Performance Bank Guarantee by Kay Bouvet to Mashkour. Vide letter dated 21st April 2011, Exim Bank informed Overseas that an amount of Rs. 46.58 Crore had been remitted to its bank account. Overseas vide letter of the same date confirmed to Mashkour about receipt of funds and further informed that it will release USD 10.62 Million to Kay Bouvet on submission of requisite bank guarantees. On 28th July 2011, Kay Bouvet informed Overseas that it had submitted necessary Guarantees to Mashkour. On the advice of Mashkour, Overseas paid an amount of Rs.47,12,10,000/- to Kay Bouvet. There were certain disputes with regard to exchange rate, on account of which, Kay Bouvet informed Mashkour that it ought to have been paid more amount in Indian Rupees.;