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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 ..... Adjudicating Authority preferred the present Appeal challenging the order of admission. The Appellant herein challenged the Impugned Order of admission on the following grounds namely: a) "Section 9 Application has been filed belatedly for the reason that the operational debt was dated back to 05.12.2002; b) The statutory Demand Notice has not been delivered/served to the Corporate Debtor herein and finding of the Adjudicating Authority that the Demand Notice has been duly served, and the 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,200/-. The total amount claimed to be in default is Rs. 1,89,02,200/-. It is a fact that Respondent No. 2 owed a debt of Rs. 24,60,000/- to the Respondent No. 1 i.e., Operational Creditor with regard to a Work Order placed on him by the Respondent No. 2 on 05.12.2002. Thereafter, there were existence of disputes between the parties. 7. By an order dated 26.04.2010, the Hon'ble High Court of Andhra Pradesh appointed a Sole Arbitrator to resolve the disputes 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 Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 01.05.2019 (page-11 of the Reply) wherein it is stated that the Notice was served on Respondent No. 2 herein for appearance and filed proof of service. Vide order dated 06.06.2019 (page -28 of Reply), learned Adjudicating Authority recorded that the Notice was returned un-served and directed issue fresh Notice to the Corporate Debtor (Respondent No. 2) and directed learned Counsel to serve on the Corporate Debtor (Respondent 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 Adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed under Limitation act, 1963. Thus, the claim is within limitation. There is no representation or reply by the Corporate Debtor. Corporate debtor was served with notice before admission however, corporate debtor remained absent and it did not contest the claim. 6. In view of the above we are of the considered view that the operational creditor has been able to establish un disputed debt against corporate debtor and the corporate debtor has been in default with regard to the payment of dues to the operational creditor amounting to Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. However, Respondent No. 2 challenged the said Award under Section 34 of the Arbitration and Conciliation Act, 1996 by filing Original Application before Learned XXIV Additional Chief Judge, City Court, Hyderabad and having not pursued the Petition by the Respondent No. 2, the Petition came to be dismissed on 27.01.2016. Thus the Award has attained its finality. We are of the view that 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Conciliation Act by the learned XXIV Additional Chief Judge, City Court, Hyderabad, there is no appeal preferred by Respondent No. 2. Section 34 of the Arbitration and Conciliation Act falls in Chapter-7 of the Act which empowers for filing Application for setting aside the Arbitral Award. By the said Chapter of the Arbitration and Conciliation Act, 1996, an Appeal lies under Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t least till the final adjudicatory process under Section 34 and 37 has taken place." ... [Emphasis supplied] 23. We are of the view that the said Judgment is squarely applicable to the facts of the present case. For the reason that Application/Petition under Section 34, Arbitration and Conciliation Act, 1996 has been dismissed on 27.01.2016 and the period for preferring the Appeal under Section 37 of the Act i.e. 90 days is excluded, the period of limitation would commence from 27.04.2016 and as per the Judgment of the Hon'ble Supreme Court in the matter of "B.K. Educational Services Pvt. Ltd. Vs. Parag Gupta & Associates" [2018(14) Scale 482] (supra) i.e. three years' period of Limitation would expire on 27.04.2019. As stated supra, applying the principle and the law laid down by the Hon'ble Supreme Court in the matter "K. Kishan Vs. Vijay Nirman Company Private Limited" reported in (2018)17 SCC 662 the facts are squarely applicable in the present case. We conclude that the Application filed by the Applicant before the Adjudicating Authority is within the period of limitation. 24. In view of the above discussion and the provisions of law and the applicability of the judgement ..... 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