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TMI Blog2020 (9) TMI 1205X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Insolvency and Bankruptcy Code, 2016. On 28.02.2020 - the operational creditor sent a demand notice three months after the Corporate debtor's appeal was dismissed by Hon'ble high Court. As soon as the Corporate Debtor received the demand notice, its officers swung into action and get the appeal restored. Meantime, the operational creditor had filed this application. It appears from record that the officers of the Corporate Debtor using the proceedings under the law either to delay or to avoid the legitimate dues of the Corporate Debtor on one or the other ground. Operational Creditor has established that the Corporate Debtor committed default in paying the operational debt of ₹ 5,62,01,258/- inspite of receipt of demand notice. There was no dispute pending (by way of arbitral proceeding or otherwise) on the date on which the default occurred or on the date on which the application is filed to initiate Corporate Insolvency Resolution Process of the Corporate Debtor - Also, no disciplinary proceeding is pending against the proposed Insolvency Resolution Professional. It is not in dispute that the corporate debtor did not pay the operational debts. Applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 173 of 2010). On 29.02.2012, Learned District Judge, Barasat disposed-off that application thereby confirming the award. Thereafter the Corporate Debtor filed Appeal under Section 37 of the Arbitration and Conciliation Act, 1996 ( In short A C Act) in Hon'ble Calcutta High Court ( F.M.A. No. 939 of 2012). On 22.11.2019, the Hon'ble Calcutta High Court dismissed the Appeal in default. (iv) The Operational Creditor states that on 22.11.2019, operational debt became due and payable by the Corporate Debtor, hence, on 14.02.2020, the Operational Creditor served on the Corporate Debtor notice of demand under Section 8 of Insolvency and Bankruptcy Code, 2016. The Corporate Debtor replied the notice. According to the Operational Creditor, the Corporate Debtor raised false pleas therein. Since the Corporate Debtor committed default in paying the operational debt in spite of receipt of demand notice, Corporate Debtor may be admitted in Corporate Insolvency Resolution Process. (v) The Corporate Debtor was served with notice of this application. One of its Authorized Officer Mr. Samresh Kumar Hait appeared in the proceedings and filed affidavit in reply. We have gone throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Operational Creditor has already filed application for execution of the award in Civil Court. It is also pending. Hence, this application is not maintainable. 6. From the material on record and submissions made at the bar, only point arises for our consideration is as follows: (i) Whether on the date on which the operational debt became due against the Corporate Debtor, the Appeal under Section 37 of Arbitration and Conciliation Act, 1996 was pending challenging the award? Our answer to this point is in the Negative. 7. There is no dispute regarding the following facts - On 15.02.2020, Arbitration award came to be passed in favour of the Operational Creditor thereby directing the Corporate Debtor to pay the Operational Creditor sum of ₹ 2,79,92,1822/-. On 29.02.2012, District Court, Barasat confirmed the award. Immediately thereafter, Corporate Debtor filed Appeal under Section 37 of A C Act, 1996 challenging the awarded in Hon'ble Calcutta High Court. On 22.11.2019, that appeal was dismissed in default. On 14.02.2020, the Operational Creditor sent Corporate Debtor notice under Section 8 of Insolvency and Bankruptcy Code, 2016. It was received by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid Award. Needless to add, this petition was filed within the period of limitation set down in Section 34(3) of the A C Act, 1996. While dealing with that situation, Hon'ble Apex Court held that in para 27 28 that: 27. We repeat with emphasis that under our Code, insofar as an operational debt is concerned, all that has to be seen is whether the said debt can be said to be disputed, and we have no doubt in stating that the filing of a Section 34 petition against an Arbitral Award shows that a pre-existing dispute which culminates at the first stage of the proceedings in an Award, continues even after the Award, at least till the final adjudicatory process under Sections 34 37 has taken place. 28. We may hasten to add that there may be cases where a Section 34 petition challenging an Arbitral Award may clearly and unequivocally be barred by limitation, in that it can be demonstrated to the Court that the period of 90 days plus the discretionary period of 30 days has clearly expired, after which either no petition under Section 34 has been filed or a belated petition under Section 34 has been filed. It is only in such clear cases that the insolvency proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pass following order. ORDER 1. Corporate Debtor M/s. Orissa Minerals Development Company Ltd. is admitted in Corporate Insolvency Resolution Process under Section 9 of the Insolvency and Bankruptcy Code, 2016. 2. The moratorium under Section 14 of Insolvency and Bankruptcy Code, 2016 is declared for prohibiting all of the following in terms of Section 14(1) of the Code. (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 3. The order of moratorium ..... X X X X Extracts X X X X X X X X Extracts X X X X
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