n this case, NCLT refer section 44A of the CPC to hold the foreign award is capable to execute in

India. Apart from this the National Company Law Appellate Tribunal, in the case of Usha Holdings
LL.C. & Anr. v Francorp Advisors Pvt. Ltd. held that the adjudicating authority is not a “court”
which can decide upon the validity or jurisdiction of a foreign decree.

However, India is the old signatory of Recognition and Enforcement of Foreign Arbitral Awards, 1958
(New York Convention) as well as the Geneva Convention on the Execution of Foreign Arbitral
Awards, 1927 (Geneva Convention) and in this case foreign award is given by the United Kingdom
which is a signatory in the New York Convention and the Geneva Convention which is also notified
by the Government of India.

The petition admitted by the NCLT is correct if we see section 9 of the IBC. Section 9 application is
filed by the operational creditors upon the certain claims.

Under the IBC, Claim means:

a. a right to payment, whether or not such right is reduced to judgment, fixed, disputed,
undisputed, legal, equitable, secured or unsecured;
 
b. right to remedy for breach of contract under any law for the time being in force, if such
breach gives rise to a right to payment, whether or not such right is reduced to judgment,
fixed, matured, unmatured, disputed, undisputed, secured or unsecured.

Further, there was no pre-existing dispute related to foreign awards same the petition is filed by the
Operational Creditor. The foreign award falls within the definition of “claim” but only if we set aside
the enforcement proceeding. The absence of any objections to enforcement proceedings or
challenge proceeding in the UK is evidentiary of the lack of a pre-existing dispute.
As per our understanding, the question related to the validity of a foreign award in the absence of
proper enforcement proceedings is not touched and discussed by the NCLT.

Through this NCLT, open the route for creditors under the IBC, who have claims against Indian
debtors which are crystallized by way of foreign arbitral awards. Technically need to undergo in an
enforcement proceeding is not discussed in this case which also indicates that the IBC mechanism
does not require a foreign operational creditor to undergo enforcement proceedings in the concerned
High Court and obtain a valid enforcement order before approaching the NCLT with a claim and
CIRP proceedings.