MOUSHUMI BHATTACHARYA, J. - (1.) This is an application for setting aside of an Award dated 7th July, 2008 passed by a learned Sole Arbitrator in arbitration proceedings between the respondent (claimant in the arbitration) and the petitioner herein. The petitioner before this court is the Award-debtor and the respondent before the learned Arbitrator.
(2.) According to the petitioner, the present proceeding under Section 34 of The Arbitration and Conciliation Act, 1996, has become infructuous by reason of the management of the petitioner company (the Award-debtor) being taken over by a new entity following the approval of a Resolution Plan of the petitioner company by the National Company Law Tribunal (NCLT) under The Insolvency and Bankruptcy Code, 2016 (IBC). The petitioner 's case is that by reason of the subsequent developments after the impugned Award, the application for setting aside of the Award is not maintainable any more.
(3.) Mr. Jishnu Saha, Senior Counsel appearing for the petitioner relies on the provisions of the IBC, particularly Section 31 thereof, which provides that an approved Resolution Plan is binding on the corporate debtor and its employees, members and other stakeholders and relies on a decision of the Supreme Court in Committee of Creditors of Essar Steel India Limited vs. Satish Kumar Gupta; (2020) 8 SCC 531. Counsel contends that a successful Resolution applicant cannot be faced with undecided claims after the Resolution Plan has been accepted. Counsel places strong reliance on Essar to urge that the debts of the corporate debtor (the petitioner before this court) hence stands extinguished save to the extent of the debts which have been taken over by the resolution applicant under the approved Resolution Plan. Counsel cites Gaurav Dalmia vs. Reserve Bank of India and Ors.; 2020 SCC Online Cal 668, Axis Bank Limited vs. Gaurav Dalmia; ; Sumitra Devi Shah and Ors. vs. Tata Steel BSL Limited; 2021 SCC Online Cal 114 in support of the aforesaid contention. Counsel further relies on Section 3(11) of the IBC- "Debt "- which includes a financial debt and an operational debt and on Section 3(6)(a) of the IBC to contend that the word "claim " - which has been defined as a right to payment, whether or not such right is reduced to judgment leaves no room for doubt that a claim would also include a disputed claim and a right to payment whether such right is reduced to judgment. Counsel places the scheme of the IBC and submits that Regulation 38 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016 ( "CIRP Regulations ") provides that a Resolution Plan must mandatorily contain the amount payable under it including the amount payable to the operational and financial creditors. Counsel submits that in the event a creditor fails to submit his claims before the RP, it forfeits its rights to the claim.;