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TMI Blog2021 (5) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... /S VIJAY NIRMAN COMPANY PVT. LTD. [ 2018 (9) TMI 1533 - SUPREME COURT] . By reading of this judgement, what we understand is that operational dispute in question cannot be called un-disputed as long as Arbitration Award is under challenged U/s 34 of Arbitration and Conciliation Act, 1996. Wherein it is inter alia held that the object of Code, in so far as Operational Creditors are concerned, to put the insolvency process against Corporate Debtor only in clear cases where a real dispute between the parties to debt owed does not exist.. Further filing of S. 34 of Act against an arbitral award shows that a pre-existing dispute which culminates at the first stage of proceedings in an award, continues even after the award at least till the final adjudicatory process U/s 34 37 of Act has taken place. Therefore, the operational debt in question deemed to be a dispute, as the Respondent stated to have filed Appeal against the Award in question. Filing of the instant Petition is filed on misconception of fact and law, and it is solely filed for recovery of amount awarded in Arbitration - Petition dismissed. - C. P. (IB) No. 276/BB/2019 - - - Dated:- 27-4-2021 - Rajeswara Rao Vittan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... semi-open condition of the complex situated at 'Savoy Greens'. In terms of Agreement, the Corporate Debtor was obliged to pay the Operational Creditor a minimum guarantee of ₹ 40,000/- per month upto sales of ₹ 6,00,000/- per month on or before the 10th working day of each calendar month in advance in terms of Clause 2.1 and 2.4 of the Agreement. Further, in terms of Clause 5.4 of the said Agreement, the Corporate Debtor was obligated to pay charges of water and electricity within 10 days of receipt of bill from the Operational Creditor. Further, the Corporate Debtor was obligated to pay CAM charges of ₹ 39,375/- per month with effect from the opening of the food counter. (4) It is alleged that the Corporate Debtor since the inception of the Agreement used to commit default in payment of charges and failed to honour its commitment from the beginning. On 20.06.2017, the Operational Creditor received a letter from the Corporate Debtor stating that they were desirous of terminating the said Agreement and moving out of the premises on or before 22.09.2017 and further requested the Operational Creditor for adjustment of the rent and arrears from the Securi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... International Arbitration Centre (DIAC). And the Award was passed ex-parte. When the Respondent was notified of the ex-parte award passed against it, the Respondent filed an Appeal u/s. 34 of the Arbitration and Conciliation Act, 1996 before the Hon'ble High Court of Delhi, impugning the award, which is still pending. Further, the Respondent herein has sought to procure documents pertaining to the said appeal as well as documents necessary to rebut the claim of the Petitioner herein. However, the said documents are presently in New Delhi and due to the present Covid-related situation, the said appeal and documents connected therewith could not be produced along with the present reply. (2) It is settled law that a Petition u/s. 9 of the Code is not maintainable when the arbitral award in question is disputed by way of a Section 34 appeal and the said appeal is pending. They have relied upon the Judgment rendered by Hon'ble Apex Court in K. Kishan v. Vijay Nirman Co. (P) Ltd., (2018) 17 SCC 662. (3) The amount claimed under the present Petition by the Operational Creditor is more than the amount claimed in Demand Notice issued by the Petitioner to the Respondent und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egitimate jurisdiction of other Courts, Tribunals and fora when the dispute is one which does not arise solely from or relate to the insolvency of Corporate Debtor. The nexus with the insolvency of the Debtor must exist. Therefore, the Petitioner, invoking of provisions of the Code for implementation of Award and to recover awarded amount is against object of the Code. The Petitioner has not furnished any data prima facie showing that the Respondent has become insolvent, so as to get defence/response from the Respondent. 7. As stated supra, aggrieved by the Award in question, the Respondent has taken steps to carry the matter to the Higher Judicial forum, whereas, the Petitioner failed to take appropriate legal steps to execute the Award in question, except invoking provisions of Code by issuing Demand Notice dated 21.02.2019, wherein, the Petitioner had demanded the Respondent to repay the un-paid operational debt in default, within 10 days. However, the Present Petition has been filed only on 20th June, 2019, after a period of lapse of about 4 months from the date of demand notice that too for implementation of Award dated 29th November, 2018. Therefore, the Petitioner ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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