Dismissed

In the matter of Vovl Limited [Ia 2787 & 3363 of 2023 in Cp(Ib) 2742 (IB)2019]

NCLT9 Oct 2023IA 2787 & 3363 of 2023 in CP(IB) 2742 (IB)2019

Case brief

AI extract

What is this about?

The NCLT rejected an intervention application by a prospective resolution applicant seeking to challenge a sale of Corporate Debtor's assets based on a contractual Right of First Refusal. The court held the applicant had no locus standi as its offer was expressly contingent on this right.

What did the court decide?

Intervention application dismissed; Applicant not allowed to intervene or challenge the sale approving BPRL's acquisition.

In the matter of Vovl Limited [Ia 2787 & 3363 of 2023 in… — Insolvency and Bankruptcy | NCLT (2023)

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IN THE NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH, COURT-II

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IA No. 3363 of 2023 in IA 2787 of 2023

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CP(IB) 2742 (IB)2019

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Under section 60(5) of the Insolvency and Bankruptcy Code, 2016 r/w Rule 11 of the NCLT Rules, 2016

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IN THE MATTER OF

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PRIO S.A.

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Praia de Botafogo, 370, 13^th Floor, Rio de Janeiro - RJ, Brazil.

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Mr. Pravin R. Navandar

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(Resolution Professional of VOVL Ltd.) D519/520, Neelkanth Business Park, Old Nathani Road, Vidyavihar (West), Mumbai — 400086.

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… Respondent No. 1

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BPRL Ventures BV

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Schiphol Boulevard, 403, WTC Tower, C-4, 1 118 BK, Schipol, Netherlands.

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… Respondent No. 2

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The Committee of Creditors of VOVL Limited

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… Respondent No. 3

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IN THE MATTER OF

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Mr. Pravin R. Navandar

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(Resolution Professional of VOVL Ltd.)

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D519/520, Neelkanth Business Park, Old Nathani Road, Vidyavihar (West), Mumbai — 400086.

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... Applicant

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V/s.

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BPRL Ventures BV & Ors.

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… Respondent/s

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IN THE MATTER OF

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S.Z. Deshmukh & Co.

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… Operational Creditor

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V/s.

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VOVL Ltd.

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… Corporate Debtor

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Order delivered on :- 09.10.2023

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Coram:

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Hon’ble Shri Kuldip Kumar Kareer, Member (Judicial) Hon’ble Shri Anil Raj Chellan, Member (Technical)

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Appearances:

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For the Applicant : Adv. Yash Momaya For the Respondent No. 1 : Sr. Adv. Gaurav Joshi For the Respondent No. 2 : Sr. Adv. Ashish Kamat For the Respondent No. 3/CoC : Sr. Adv. Chetan Kapadia

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IA No. 3363 of 2023 in IA 2787 of 2023 In CP(IB) 2742 (IB)2019

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ORDER

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Per: - Kuldip Kumar Kareer, Member (Judicial)

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This Intervention Application has been filed by an entity called PRIO having its office at Praia De Botafogo, 370, 13^th floor, Rio de Janeiro – RJ, Brazil seeking the following reliefs:

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A. This Hon’ble Tribunal be pleased to allow the Applicant to intervene in Interlocutory Application No. 2787 of 2023 and be impleaded therein as a partyRespondent;

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B. That this Hon’ble Tribunal be pleased to defer the hearing of Interlocutory Application No. 2787 of 2023 till such time as this Application is heard and disposed finally;

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C. That this Hon’ble Tribunal be pleased to order and direct the RP to supply a copy of Interlocutory Application No. 2787 of 2023 together with the details, particulars and relevant documents with regard to the arrangement arrived at between BPRL and the RP and COC to the Applicant and allow the Applicant to file its affidavit to oppose the Interlocutory Application No. 2787 of 2023;

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D. In the alternative to Prayer B, that this Hon’ble Tribunal be pleased to permit the Applicant to file Affidavits / pleadings and make submissions at the time of hearing of Interlocutory Application No. 2787

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of 2023;

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E. Pending the hearing and final disposal of this Application, this Hon’ble Tribunal be pleased to stay the proceedings in Interlocutory Application No. 2787 of 2023;

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Brief facts of the Applicantion:

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The present Application has been filed by PRlO S.A, one of the prospective resolution applicants ("PRIO/Applicant"). The corporate insolvency resolution process ("CIRP") was commenced against the Corporate Debtor vide this Hon'ble Tribunal's Order dated November 8, 2019, read with Corrigendum Order dated November 25, 2019. After the commencement of CIRP, interim resolution professional ("IRP") was substituted with the resolution professional ("RP"), who published, in Form G, an invitation for submission of expression of interest ("EOI"). Pursuant thereto the Applicant submitted an EOI on May 7, 2020. As per the EOI, the Applicant submitted an offer ("First Offer") for the acquisition of the entire participating interest ("Pl") held by VEBL (a step-down subsidiary of the Corporate Debtor, incorporated in the British Virgin Islands, through which the Corporate Debtor holds Quota/shares in IBV) indirectly through IBV Brasil Petr6leo Lda. ("IBV") for an amount of US$32,500,000. Thereafter, the RP requested the Applicant to present a revised offer in view of multiple extensions given by the RP. Accordingly, the Applicant presented a revised offer ("Second Offer") dated August 31,

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2022, for the acquisition of 17.857% of the PI in the Wahoo Field. Thereafter, during the 8th meeting of the Core Committee, after the discussion on Secord Offer, a counterproposal was made by the Core Committee, which was accepted by the Applicant. The Applicant, on November 21, 2022, ultimately submitted a revised offer ("Third Offer") along with all the documents requested by the RP, receipt of which the RP acknowledged and confirmed.

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Thereafter, the RP did not revert to the Applicant after the submission of Third Offer. It had come to the knowledge that in the IM it was provided that the indirect acquisition of the PI is subject to the rights of contractual counterparties, including BPRL. The VEBL and BPRL were the contractual counterparties in a Quotaholders Agreement, which was regarding the governance of IBV, dated September 12, 2008. Basis the Quotaholders Agreement, the COC and the RP have arrived at terms with BPRL for BPRL to acquire VEBL's quotas/shares in IBV, thereby indirectly rejecting the Third Offer.

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From the website of this Hon'ble Tribunal, PRIO has learnt that the RP has filed the RP's Application, in which BPRL and the COC have been arrayed as Respondents. At the hearing of the RP's Application on July 5, 2023, PRIO verily believes that the RP's Application is for sale of VEBL's quotas (i.e., shares) in IBV to BPRL. This amounts to rejection of PRIO's Offer and acceptance of an offer submitted by another person who did not even submit an EOI and was never a part of the final list of PRAs issued by

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the RP. Hence, this Application to intervene the Interlocutory Application No. 2787 of 2023 filed by the RP.

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Submissions made by Respondents

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The Intervention Application has been resisted by the Respondents in the reply filed by the Resolution Professional, it has been pleaded that the Application is not maintainable and is liable to be dismissed in limine. According to the Respondent, the Corporate Debtor is undergoing CIRP in pursuance of the admission order dated 08.11.2019 whereby the Respondent was appointed as IRP and was subsequently confirmed as RP.

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The Respondent further submits that the Corporate Debtor inter alia holds through its step-down subsidiary Videocon Energy Brazil Limited (VEBL) quotas in IBV Brasilio Petroleo Limitada, which in turn holds participating interest (PI) in oil and gas blocks in the Fedrative Republic of Brazil. IBV is a company incorporated under the laws of Brazil, which is joint venture of VEBL and Respondent No. 2 BPRL a group company of Bharat Petroleum Corporation Limited. The inter-se rights of BPRL and VEBL viz-a-viz IBV are governed in terms of the quota holders agreement (QHA) dated 12.09.2008. In view of the terms of QHA, the transfer of quotas of VEBL or transfer of VEBL’s proportionate share of PI held by IBV in the Brazilian assets would trigger the requirement issue a notice of 30 business days to BPRL to exercise its pre-emptive “Right of First Refusal (ROFR)” to purchase VEBL quotas on the same terms as offered by the

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proposed purchasers of VEBL quotas. Further, as per QHA, any transfer of VEBL quota in contravention of BPRL’s ROFR under QHA is null and void.

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It is further submitted that during the course of CIRP of the Corporate Debtor, Respondent No. 1 received four Resolution Plan/offers from (a) The Applicant, (b) Eneva S.A., (c) Twin Star Overseas Limited (a group company of Vadanta Limited) and (d) RKG Fund. Considering the above mentioned pre-existing contractual provisions, it was considered by Respondent No. 3 that in the event Respondent No. 2 exercise the ROFR, it would be required to consummate the transaction with Respondent No. 2 and would be precluded from proceeding with the consideration and approval of the Resolution Plan and in its commercial wisdom, Respondent No. 3 passed a Resolution in 37^th meeting directing Respondent No. 1 to issue a notice to Respondent No. 2 to exercise its ROFR under the QHA on the basis of the offers submitted by the Applicant as well as the others. Accordingly, Respondent No. 1 issued notice dated 13.04.2023 to Respondent No. 2 and the latter vide its letter dated 17.05.2023 as well as letter dated 18.05.2023 agreed to exercise its ROFR to acquire the quotas of VEBL in IBV by matching the offers of Eneva and the Applicant. Subsequently in its 39^th and 40^th meetings Respondent No. 3 passed Resolution to consummate the proposed transaction with Respondent No. 2 for the sale/transfer of the quotas of VEBL and also to liquidate the residual assets of the Corporate Debtor.

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Respondent No. 1 has further submitted that there is no

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contravention of Regulation 36A of the CIRP Regulations as a result of non-submission of EOI by Respondent No. 2 in view of the contractual terms incorporated in QHA and therefore, the submission of EOI by Respondent No. 2 was immaterial. Moreover, the Applicant participated in the Resolution Process and submitted its offer while being fully aware of the fact that the consideration of its offer would be subject to ROFR available to Respondent No. 2. Even the offer submitted by the Applicant itself stipulates a condition that Respondent No. 2 should consent to waive its ROFR. The Applicant had set out in its offer that the approval of the offer made by it is contingent upon non-exercise of ROFR by Respondent No. 2. Therefore, the Applicant has not locus standi to seek impleadment/intervention in the approval Application.

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The other averments made in the IA have also been denied as wrong and in the end the prayer for dismissal of the IA has also been made.

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In the reply filed by Respondent No. 2, it has been stated that the Applicant has no vested right to intervene or seeks documents which are confidential and do not pertain to the Applicant. Moreover, the transaction being placed before this bench for approval by Respondent No. 3/CoC is in accordance with the Applicable laws and enforcement of security interest held by the Secured Financial Creditors of VOVL. The proposed sale is equitable and is in consonance with the Information Memorandum (IM), RFRP and QHA

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and also achieves the objective of value maximization.

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Respondent No. 3 has also filed reply more or less on similar lines and has also prayed for the dismissal of the Intervention Application.

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Findings:

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We have heard the Counsel for the parties and have gone through the records.

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During the course of arguments, the Counsel for the Applicant has argued that the present intervention Application deserves to be allowed considering the peculiar facts and circumstances of the case. According to the Counsel for the Applicant, the Respondents are simply selling the assets and bye-passing the Resolution Process which is absolutely dehor the IB Code, 2016 and such irregularities cannot be allowed to be committed under the garb of the commercial wisdom of CoC which cannot be stretched to an extent where it tends to violate the statute itself by egregious acts.

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It has been argued by the Counsel for the Applicant that the Applicant has locus standi in the matter. Without the Applicant's participation in the CIRP, on the RP and COC’s own admissions, the question of inviting BPRL to match the offer for acquisition of Participating Interests of IBV in Wahoo Field would not arise. In view of the fact that the Applicant’s participation in the CIRP is inextricably linked to the offer made by the RP and COC to BPRL, there can be

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no doubt that the Applicant is a proper and necessary party and undoubtedly has the locus standi in these proceedings. Further, the Applicant, as a prospective resolution applicant, has a right to demand that the provisions of the IBC and the CIRP Regulations be complied with, a level playing field be provided to all prospective resolution applicants, and failing such compliance, the Applicant has a right to approach this Hon’ble Tribunal.

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The Counsel for the Applicant has further argued that the present application, filed under Section 60(5) of the IBC read with Rule 11 of the National Company Law Tribunal ( NCLT ) Rules, 2016 is maintainable at the instance of the Applicant. Under Section 60(5)(c) the Hon’ble Tribunal has jurisdiction to entertain or dispose of any question of law or facts, arising out of or in relation to the insolvency resolution of a corporate debtor under the IBC. There can be no dispute that the questions raised in the present application arise out of or in relation to the CIRP of the Corporate Debtor. Similarly, under Rule 11 of the NCLT Rules, 2016 , this Hon’ble Tribunal has inherent powers to make such orders as may be necessary for meeting the ends of justice or to prevent abuse of the process of the Hon'ble Tribunal. This would include preventing any illegality in an insolvency process and breach of the provisions of the IBC from being perpetrated and consummated.

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Further, according to the Counsel for the Applicant, the RP has filed the RP’s Application seeking to consummate the

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transaction with BPRL. Should the RP’s Application be allowed, the Applicant would certainly be a “person aggrieved” by the order of this Hon’ble Tribunal, conferring a right of appeal under Section 62 of the IBC . It is, therefore, clear that the Applicant has the locus to maintain this application at this juncture itself.

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The Ld. Counsel for the Applicant has further submitted that the RP and the COC have included the Applicant in the list of PRAs and have extensively negotiated and renegotiated with the Applicant with respect to the Applicant’s offer of acquiring IBV’s Participating Interests in the Wahoo Field. In view of this, the RP and the COC cannot now argue that the Applicant’s offer was not a resolution plan, to seek to oust the Applicant from these proceedings. In any case, even the offer made by BPRL (on the basis of the price discovery done by the RP and COC by making the Applicant submit its bid) is also not a resolution plan. In view of this, if the Applicant is disqualified on the ground of non-submission of a resolution plan, then BPRL’s offer also must be rejected on the same ground.

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The Ld. Counsel for the Applicant has further contended that given that the Applicant is a proper and necessary party, the refusal by the RP and the COC to share any documents and information, including the purported offer by BPRL (purportedly on the same terms and price as the Applicant) is not tenable. The only reason to not share the same is on the alleged basis that “a Resolution Plan containing sensitive and confidential information cannot be

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disclosed” However (a) the RP did not hesitate in sharing the Applicant's (and Eneva’s) offers with BPRL (without the Applicant's knowledge or consent), violating this same confidentiality requirement it seeks to take shelter behind; and (b) considering that the Applicant's offer is purportedly matched by BPRL, there ought to, naturally, be nothing secret in BPRL’s offer warranting the refusal.

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The Counsel for the Applicant has further argued that admittedly, BPRL did not participate in the CIRP, and did not submit an EOI. BRPL was, therefore, not included in the final list of PRA's. The CIRP Regulations require the RP to conduct due diligence to satisfy that the PRA complies with the provisions of Section 25(2)(h) and Section 29A of the IBC, and other requirements of the IEOI [See CIRP Regulations, regulation 36A(8)]. Given this has not been done for BPRL, BRPL is not even be eligible to make any offer to the RP and COC. This is quite apart from the fact that it is entirely unknown to the RP, COC, and this Hon’ble Tribunal whether BPRL would, even otherwise, meet the eligibility criteria prescribed as part of the CIRP, including not being disqualified under Section 29A of the IBC.

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The Ld. Counsel for the Applicant has further pointed out that under Regulation 36B(1), the RFRP is to be issued to prospective resolution applicants whose name appears in the final list published by the RP. Because BPRL was not included in the final list, it could never have participated in the process further. The COC under Regulation 39(1B) of the CIRP Regulations is prohibited from considering a

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resolution plan which is received from an entity/person who does not appear in the final list of PRAs. This statutory requirement of the IBC cannot be circumvented or thwarted under the guise of commercial wisdom. Accordingly, BPRL’s offer could never have been considered. It is unknown as on date whether BPRL is disqualified under Section 29A or if it meets the eligibility criteria set out in the IEOI as laid down by the RP and COC. As such, to permit BPRL to acquire the assets of the Corporate Debtor in the manner sought would completely jettison the requirements and safeguards of provisions of the IBC including Section 29A.

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According to the Counsel for the Applicant, contrary to the provisions of the IBC and the regulations thereunder, the RP with the approval of the COC has simply gone ahead and purported to consummate a transaction with BPRL in complete secrecy. By doing so, the RP and COC are attempting to enforce a contractual provision through the statutory process of CIRP, which is impermissible. The RP has bypassed the statutory process of the IBC, which requires transparency and a level playing field for all bidders. Needless to state, any such failure to maintain a level playing field amounts to a breach of the process under the IBC and is antithetical to the objective of value maximization. The Counsel for the Applicant has relied upon Amritvani Exim Private Limited v. Ajanta Offset and Packaging Limited, I.A. 1528/ND/2022 in CP No. IB – 1526/ND/2019, whereby It has been held that it is trite law that when a statute confers a power to do an act and

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lays down the method in which the power has to be exercised, it necessarily prohibits and excludes doing of that act in any other manner than that which has been prescribed.

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The Counsel for the Applicant has further argued that the contention of COC that its actions fall within the ambit of its commercial wisdom is also fallacious. He has further contended that the “ commercial wisdom ” of the COC does not entitle it to jettison the mandatory requirements of the IBC and the CIRP Regulations.

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The Ld. Counsel for the Applicant has further argued that in the facts of the present case, the ROFR in the QHA is not triggered by the Applicant's offer. The QHA is governed by Brazilian Law. The Applicant has obtained written opinion on Affidavit from a leading Brazilian law firm which has stated that the ROFR does not apply inter alia for the reasons that the Applicant's offer relates solely to an asset of IBV Brazil Ltd. ( IBV ) i.e., the participating interest held in the Wahoo Field. Further, there is no ROFR under the QHA in respect of a sale of assets by IBV. Resultantly, given that the offer does not relate to the purchase of quotas under the QHA, the Applicant's offer does not trigger the ROFR under the QHA. Pertinently, no contra material has been produced by any of the Respondents. Even otherwise, Foreign law (such as Brazilian law) is a question of fact before any Indian court and must be pleaded and proved as such.

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The Ld. Counsel for the Applicant has further contended that even otherwise, without prejudice to the above, the RP is not obligated to consider / comply with a ROFR clause in an agreement by VEBL, a step-down subsidiary, in the CIRP of the Corporate Debtor, as the Corporate Debtor is not party to that agreement.

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The Ld. Counsel for the Applicant has further contended that the Applicant cannot be said to be estopped from challenging either the sale of assets of BPRL being contrary to the IBC / CIRP Regulations; or the invocation or applicability of the ROFR on the ground that the Applicant's offer was subject to the ROFR. According to the Counsel for the Applicant, there can be no estoppel against the provisions of a statute or against the law, such as the CIRP Regulations. In support of his contentions the Ld. Counsel for the Applicant has relied upon MCGM v. Abhilash Lal, (2020) 13 SCC 234 , whereby it has been held that there can never be estoppel against statute / law.

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In the light of the above contentions, the Counsel for the Applicant has urged that the Applicant be allowed to intervene and oppose the IA 2787 of 2023 as a Respondent.

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On the other hand, the Counsel for the RP has argued that the contention raised by the Counsel for the Applicant that the assets could not have been sold otherwise than by way of a Resolution Plan is a fallacious one and deserves to be rejected outrightly. According to the Counsel for the RP, the Applicant participated in the process of sale knowing fully

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well the terms and conditions of the process and throughout the process, the Applicant was aware that the proposed sale was a contingent one which depended upon occurrence or non-occurrence of certain events. The Applicant was further aware that the acceptance of its offer was subject to the right of first refusal of BPRL and this fact has been candidly admitted by the Applicant in para 25 of the IA wherein it is mentioned that the indirect acquisition of PI in the Wahoo Field was subject to the rights of the contractual counter parties including BPRL. Therefore, now the Applicant cannot turn around and claim that the process of sale is not legitimate. It, therefore, cannot be disputed that the offer made by the Applicant was subject to exercise of the right of first refusal by BPRL. The said right of BPRL was never challenged by the Applicant. The Counsel for the Applicant has further contended that the Applicant has no locus to intervene in the matter now after the bid given by the Applicant could not fructify considering the fact that the right of first refusal was exercised by BPRL and further that BPRL had the said right as per the terms and condition incorporated in the quota holders agreement dated 12.09.2008. The Counsel for the RP has further argued that the present Application has been filed only to delay the proceedings and is vexatious in nature.

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The Ld. Counsel for the RP has further argued that having participated in the process knowing fully well the rules of the game, the Applicant is now estopped from claiming that the entire process was bad in the eyes of law or the same

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was totally against the provisions of the Code.

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The Ld. Counsel for the CoC, Mr. Chetan Kapadia has also argued that the Applicant has no locus to intervene in the matter. He has further contended that provisions of IBC cannot override the contract and, therefore, it cannot be successfully argued that the right of first refusal of BPRL was not applicable in the CIRP of the Corporate Debtor.

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The Ld. Counsel for BPRL, Mr. Ashish Kamat has argued that the Applicant is neither a necessary nor a proper party in IA 2787 of 2023. He has further contended that the Applicant is only an unsuccessful bidder and the bid was subject to the rights of BPRL and further that the Applicant was fully aware of this fact throughout. Therefore, having lost the bid due to the fact that the right of first refusal was exercised by the BPRL, the Applicant has been left no locus to challenge the process of sale. The Counsel for the Applicant has further contended that even otherwise the right of BPRL was its contractual right as per the Brazilian law and the provisions of the IBC cannot be extended to override the contractual laws of a foreign country. Therefore, under no circumstances could the right of BPRL be bye-passed to uphold the bid of the Applicant. The Ld. Counsel for BPRL has also prayed for the dismissal of the intervention Application being devoid of any merit.

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We have weighed the contentions raised by the Counsel for the parties and have carefully gone through the records.

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By way of this IA the Applicant is seeking to intervene in IA

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2787 of 2023, which has been filed by the Respondent No. 1 u/s 60(5) of the Code, 2016 seeking approval of the offer received from BPRL for purchase of interest held by the Corporate Debtor in oil and gas assets in Brazil and for undertaking all necessary steps for the conclusion of the CIRP of the Corporate Debtor.

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The pleaded case of the Applicant in the Intervention Application itself that before inviting offers, in the information memorandum, it was provided that the indirect acquisition of PI would subject to contractual rights of the counter parties including BPRL. It was also disclosed that ROFR was existing in BPRL’s favour under QHA dated 12.09.2008 executed between BPRL and VEBL with regard to IBV. The Applicant has attached the offer letter dated 31.08.2022 submitted with the Respondent No. 1 and in the said letter itself, the Applicant has mentioned that the offer being made by it was contingent upon the occurrence or non-occurrence of certain events. The Applicant has further stated therein that it shall not be deemed as an Applicant of a Resolution Plan nor a party to the Insolvency procedure whatsoever being a potential buyer of the assets to be sold as permitted under the Insolvency procedure. The Applicant further stated that VEBL shall individually seek the consent of BPRL and its non-exercise of ROFR and further that the Applicant shall not have any responsibilities in connection with the obtainment of such consent and non-exercise.

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The Applicant has further attached another letter dated

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21.11.2022 wherein too the Applicant has stated that the offer is not a Resolution Plan and shall not be deemed one and the offer is contingent upon approval of CADE and ANP (some Authorities of Brazil) as well as upon the consent to be given by BPRL. Therefore, it is writ large that the Applicant had only made an offer to acquire the 17.85% of the participating interest in the Vahoo Field held by VEBL. It has also been candidly admitted by the Applicant in its offer letters that it was not to be considered an Applicant of a Resolution Plan nor a party to the Insolvency procedure whatsoever. The Applicant was fully aware that the offer being made by him was subject to the exercise of ROFR by BPRL which further indicates that the Applicant was also in the know of the terms and conditions of the QHA under which BPRL had ROFR in the event of any transfer by the other stake holder. Having participated in the process of sale of PI knowing fully well that the offer made by the Applicant was contingent upon exercise of ROFR by BPRL, the Applicant cannot now turn around and claim that the entire process was against the law or was dehor the IB Code, 2016 or the CIRP Regulations. In our considered view, the Applicant has absolutely no locus nor can it be heard harping that the approval of the proposed sale by Respondent No. 3 in favour of BPRL following its exercise of ROFR under QHA is illegal, null and void.

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The contention raised by the Counsel for the Applicant that the Applicant cannot be said to be estopped from challenging the approval of the sale in also not tenable.

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Merely because the Applicant was a highest bidder cannot be taken to mean that it can override the contractual rights of BPRL. Similarly, the contention raised by the Counsel for the Applicant that section 238 of the Code, overrides any contractual rights and obligation of the parties so far as QHA is concerned, is also specious. In our considered view, the scope of Section 238 of the Code, 2016 cannot be stretched to hold that it overrides or obliterates all sorts of contracts. Moreover, the QHA is a contract under which the parties hold certain rights and obligations in an asset stationed abroad and therefore, the legitimate contracts of the parties cannot be said to be overridden by the provisions of the Code, 2016.

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Since the Applicant seems to be having absolutely no locus in the matter, it cannot be allowed to assail and question the commercial wisdom of Respondent No. 3 which would be considered while adjudicating IA No. 2787 of 2023.

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It has also been vehemently argued on behalf of the applicant that the process of sale being carried out by the RP and the COC is in violations of the provisions of the Code and CIRP Regulations. It has been pointed out that BPRL was never in the fray nor it ever was one of the PRAs. According to the learned Counsel for the applicant, as per the provisions of Regulation 39(1-B) of the CIRP Regulations for Corporate Persons, the COC cannot consider any resolution plan received from a person who does not figure in the list of prospective resolution applicants. Therefore, the offer of BPRL could not have been considered at all.

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We have considered the above contentions of the learned Counsel for the applicant but have found the same to be devoid of any force or substance. Regulation 37 of the CIRP Regulations clearly provide that a resolution plan can provide for measures for the insolvency resolution of the corporate debtor for maximization of value of its assets including sale of all or parts of the assets. How a sale is to be or can be effected would depend upon the facts and circumstances of each particular case and the same would also be subject to contractual rights and liabilities of all the stake holders involved. Therefore, there cannot be a straight jacket formula which can be or has to be applied in each and every insolvency resolution. In extraordinary situations, COC can always adapt to a given situation using its commercial wisdom. Therefore, it cannot be concluded that the whole process is violative of the Code as well as the Regulations. Besides, as earlier pointed out, the applicant has absolutely no locus in the matter nor any of its rights are being infringed as the applicant was conscious of the fact throughout that its offer was a contingent one.

¶148

The Counsel for the Applicant has further relied upon some legal opinion obtained from some Brazilian lawyer whereby it has been opined that the ROFR can be exercise subject to fulfillment of certain conditions as per certain articles of Brazilian Civil Code. However, in our considered view, no significance can be attached to the legal opinion relied upon by the Applicant.

¶149

The Counsel for the Application has further relied upon

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¶151

IA No. 3363 of 2023 in IA 2787 of 2023 In CP(IB) 2742 (IB)2019

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Municipal Corporation of Grater Mumbai V/s Abhilash

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Lal and Others 2019 SCC Online SC 1479 as well as Harishankar Jain V/s Sonia Gandhi 2001 SCC Online

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SC 1095 on the point that there cannot be any estoppel against law. As discussed in the forgoing part of this order, we are of the considered view that the law laid down in the cited cases cannot be applied to the facts and circumstances of this case considering the fact that the Applicant participated in the process with all knowledge of the terms and conditions of QHA and ROFR of BPRL and the offer made by the Applicant was a contingent one.

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As a result of the forgoing discussion, we are of the considered view that the Intervention Application is devoid of any merit and is hereby dismissed.

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Sd/-

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Sd/-

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ANIL RAJ CHELLAN Member (Technical)

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KULDIP KUMAR KAREER Member (Judicial)

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ANKIT

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