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TMI Blog2020 (8) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... a debt to the Respondent No. 1 and failed to pay the debt to Respondent No. 1. Respondent No. 1 invoked the jurisdiction of arbitration. The Respondent No. 2 participated in the Arbitral proceeding before the Sole Arbitrator through their Counsel and it is evident from the Award of the Sole Arbitrator that the Respondent No. 2 contested the matter. The learned Sole Arbitrator had passed the Award and the same is binding on Respondent No. 2 - by passing Award by the learned Sole Arbitrator, the amount has been crystalized and by default in payment and by not honouring the Award, the amount became due and payable. The Respondent No. 1 had rightly invoked jurisdiction of the Adjudicating Authority under Section 9 of the IBC after issuance of Demand Notice as prescribed under Section 8 of IBC. As per Article 116 of the Limitation Act 1963, which is under the Second Division Appeal, the period prescribed is 90 days to file Appeal before the High Court from any Decree/Order. Against the order passed under Section 34 of the Arbitration and Conciliation Act, 1996, the only Appeal lies under Section 37 of the Arbitration and Conciliation Act 1996 before the Hon ble High Court and the lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Postal track record has been filed through a Memo is grossly erroneous. c) The Adjudicating Authority failed to appreciate that the Operational Creditor Respondent No. 1 herein has not attached a copy of the invoice to the Demand Notice as required under Section 8(1) of IBC for malafide reasons as the alleged Proforma Invoice is highly belated i.e., 05.02.2002. d) That the Adjudicating Authority failed to appreciate that the notice of the Company Petition was not served to the Appellant herein even through e-mail describing the fact that the e-mail ID of the Appellant (Corporate Debtor) is available on the MCA portal. The finding of the Adjudicating Authority that the claim is within period of limitation is grossly erroneous and the Adjudicating Authority has not discussed the starting point of limitation. 3. Learned Counsel for the Appellant vehemently opposed the admission of the Application by the Adjudicating Authority and submitted that the Adjudicating Authority ought to have considered and rejected the Application on the grounds as mentioned above. He submitted that the Appellant had not received the Demand Notice and the copy of Application filed under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isputes between the parties arising out of the above work order dated 05.12.2002. Both the parties appeared before the Sole Arbitrator and the Sole Arbitrator passed the award on 30.05.2013 (page-30-47) awarding an amount of ₹ 65,18,000/- to be paid to the Claimant i.e., Respondent No. 1 by the Respondent No. 2 along with interest @ 24 % per annum from the date of claim of settlement till the actual payment of amount. 8. Even the Award was passed on 30.05.2013, Respondent No. 2 Company had not honoured the Award. Respondent No. 1 issued a Demand Notice on Respondent No. 2 dated 06.11.2013 (Page-48) for payment of awarded amount and filed a Postal Receipt showing despatch of Notice to the Respondent No. 2 dated 07.11.2013 at 9:58 hrs. (page-50) and the Track Result of Indian Post Office filed at page-51 of Paper Book which shows that the Article/consignment has been dispatched on 13.11.2013. Respondent No. 2 filed Original Petition bearing No. 739 of 2014 before XXIV Additional Chief Judge, City Court, Hyderabad seeking to set aside the Award passed by the Sole Arbitrator dated 30.05.2013. Learned XXIV Additional Chief Judge, City Court, Hyderabad dismissed the said Origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 2) to file proof of service. 14. Vide order dated 03.07.2019 (page 13 of the Reply), learned Adjudicating Authority recorded that learned Counsel for the Operation Creditor present and reported that the Notice sent to the Corporate Debtor was returned with the endorsement left . She again requested to order fresh Notices to the Corporate Debtor and also to the Directors of the Company and further notices to be sent to the e-mail address of the Corporate Debtor Company. Learned Adjudicating Authority directed to provide address particulars of the Directors of the Company including new address of the Corporate Debtor and also e-mail address in the Registry and directed Registry to prepare fresh Notice on 29.07.2019 (page-14 of the Reply). Learned Adjudicating Authority recorded that none appeared for the Corporate Debtor. Learned Counsel reported that Notices were served on the Corporate Debtor as well as on the Directors. On 05.08.2019 (page 15 of the Reply), learned Adjudicating Authority recorded that Counsel for the Operational Creditors are not present. He has filed a Memo along with Annexure stating that Notice was served on the Company. Notices issued to the Directors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or and the corporate debtor has been in default with regard to the payment of dues to the operational creditor amounting to ₹ 1,89,02,200/-. The Operational creditor is able to establish through documents that corporate debtor committed default of operational debt and there is no pre existing dispute. Thus, this Petition is complete and is liable to be admitted. 15. From the perusal of the order, learned Adjudicating Authority was satisfied with the Notice served on the Corporate Debtor i.e., Respondent No. 2 herein and the Postal Track Report filed through Memo. Further, learned Adjudicating Authority recorded that the claim is submitted within a period prescribed under Limitation Act, 1963. Thus the claim is within limitation. There is no representation nor any reply by the Corporate Debtor. The Corporate Debtor was served with notice before Admission. However, the Corporate Debtor remained absent and it did not contest the claim. 16. From the records filed by the Respondent No. 1 with regard to the service of Demand Notice dated 22.01.2109 and the Application dated 03.04.2019 filed before the Adjudicating Authority, it is unequivocal that the Notices were se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned Sole Arbitrator, the amount has been crystalized and by default in payment and by not honouring the Award, the amount became due and payable. The Respondent No. 1 had rightly invoked jurisdiction of the Adjudicating Authority under Section 9 of the IBC after issuance of Demand Notice as prescribed under Section 8 of IBC. The Respondent No. 2 had not replied nor brought any dispute with regard to the claim made by Respondent No. 1. 18. Learned Counsel for the Appellant submitted that the learned Adjudicating Authority should not have admitted the Application since the IBC cannot be invoked for execution of an Award. In this regard, we are of the view that the word Creditor has been defined in Section 3(10) of IBC which reads as under: creditor means any person to whom a debt is owed and includes financial creditor, operational creditor, a secured creditor and unsecured creditor and a decree-holder The Respondent No. 1 is a Decree-Holder in the eye of law. Learned Counsel for the Appellant submitted that the Impugned Order is in the teeth of the settled law with the provision of Article 137 of the Limitation Act, 1963 shall be applicable for filing a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37 against the said Order. The said provision is reproduced herein below: 37. Appealable orders.- (1) An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:- (a) granting or refusing to grant any measure under section 9; (b) setting aside or refusing to set aside an arbitral award under section 34. (2) An appeal shall also lie to a Court from an order granting of the arbitral tribunal.- (a) accepting the plea referred in sub-section (2) or sub-section (3) of section 16; or (b) granting or refusing to grant an interim measure under section 17. (3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court. . [Emphasis supplied] From the reading of the above provision, an Appeal shall lie from the following orders to the Court authorised by law to hear the Appeal beyond original Decree of the Court passing order namely: (a) granting or refusing to grant any measure under section 9; (b) setting aside or refus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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