# In the matter of ODAT GmbH vs. CA Santanu Brahma & Ors.

> NCLAT judgment dated 2024-02-13. Citation: TCN-2024-NCLAT-00638. This case involves an appeal filed by ODAT GmbH, a foreign financial lender, challenging an…

- **Court:** NCLAT
- **Order date:** 13 Feb 2024
- **Citation:** TCN-2024-NCLAT-00638
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclat-new-delhi/odat-gmbh-vs-ca-santanu-brahma-ors-5f5bfae3

## Summary

### Background

This case involves an appeal filed by ODAT GmbH, a foreign financial lender, challenging an order dated 11.12.2023 passed by the Adjudicating Authority (National Company Law Tribunal), Kolkata, which rejected I.A.(IB) No. 1649/KB/2023. ODAT GmbH sought a direction to the Resolution Professional to include it in the Committee of Creditors (CoC) and provide voting rights. The Adjudicating Authority rejected the application, leading to the appeal before the NCLAT. The core issue revolves around whether ODAT GmbH should be considered a 'related party' to the Corporate Debtor, Darjeeling Organic Tea Estates Private Limited, thereby disqualifying it from being part of the CoC with voting rights.

## Facts

ODAT GmbH, a German company, extended loans to Darjeeling Organic Tea Estates Private Limited (Corporate Debtor) between 2014 and 2020, totaling Rs. 158,97,81,571. The loan was an external commercial borrowing approved by the Reserve Bank of India. CIRP commenced against the Corporate Debtor on 28.10.2022. ODAT GmbH filed a claim in the CIRP for Euros 1,77,40,328, equivalent to INR 158,97,81,751, on 20.09.2023. The IRP did not grant voting rights to ODAT GmbH, considering it a related party because Rembert Biemond, one of ODAT's Managing Directors, was also a Director in the Corporate Debtor since 2017. Rembert Biemond was appointed by foreign investors. ODAT GmbH was incorporated on December 4, 2019. The claim filed by ODAT before the IRP has been accepted to the

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## Issues and analysis

### Issue 1: Whether the Adjudicating Authority erred in holding ODAT GmbH as a related party to the Corporate …

**Ratio:** Section 5(24)(h) defines a related party as any person on whose advice, directions, or

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**Reasoning:** The NCLAT reasoned that the Adjudicating Authority erred in attributing the actions of

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**Interpretation:** Section 5(24)(h) requires a direct link between the advice, directions, or

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**Application:** In this case, the NCLAT found no evidence that ODAT GmbH provided any advice,

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## Parties

- **Judges:** Ashok Bh…; Barun M…; +1 more
- **Appellants:** ODAT…
- **Respondents:** Darjeeling…; CA Santanu…

## Timeline

- **2014-01-01 — Loan Exte…**: ODAT GmbH extended loans to Darjeeling Organic Tea Estates Private Limited between 2014…
- **2017-01-01 — Rembert Biemond…**: Rembert Biemond was appointed as…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 5(24) — Definitions](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-5)

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