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TMI Blog2022 (12) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... w Tribunal, New Delhi (Court No. II) by which an application bearing (IB)-1024(ND)2020, filed by the Appellant under Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code'), has been dismissed, inter alia, on the ground that the Appellant is a related party in terms of Section 5(24)(j) of the Code and there was a pre-existing dispute. 2. In brief, the Appellant entered into a Goods Supply Contract on 23.08.2017 with the Respondent (Corporate Debtor). There was an addendum to the said contract dated 27.08.2018. It is an admitted case that the Appellant served a pre-trial notice (Annexure A-5) in terms of the provision of Russian Laws to the Respondent on 03.09.2019 to which reply was filed by the Respondent on 23.09.2019. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-existing dispute between the parties and that there is a provision for arbitration in the contract which was the genesis of their relationship. The Adjudicating Authority decided both the issues against the Appellant and dismissed the application filed under Section 9 of the Code. 3. Aggrieved against the impugned order, the present appeal has been preferred in which, while challenging the first issue decided by the Adjudicating Authority qua the related party, while relying upon the judgment delivered by the Tribunal, approved later on by this Appellate Tribunal in the case of Zoom Communication Pvt. Ltd. (Supra), it is submitted that the facts in the case of Zoom Communication Pvt. Ltd. (Supra) are altogether different from the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is not made out from the record. It is also submitted that the Adjudicating Authority has relied upon the emails dated 31.08.2018, 27.10.2018 and 29.10.2018 to somehow reach to a conclusion that there was a pre-existing dispute. In this regard, while referring to the email dated 31.08.2018, it is submitted that the said email was only to improve 'Acoola' operation and sales and not regarding anything to say that the goods supplied were substandard. As regards the clause of arbitration is concerned, which is stated to have been mentioned in the contract itself, it is argued that the presence of the arbitration clause in the argument will not disentitle the Appellant from preferring the application under Section 9 of the Code, in this rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 21 of the Arbitration and Conciliation Act, 1996 (Act) is in part -1 which pertains to the domestic arbitration and shall not apply to any arbitration, which take place beyond India and in this regard, he refers to a decision of the Delhi High court in the case of Raffles Design International India Pvt. Ltd. & Anr. Vs. Educomp Professional Education Limited & Ors. 2016 SCC Online Del 5521, in which it has been observed that "Section 21 is in Part I of the Act and, indisputably, applies only to arbitral proceedings in India". He has further submitted that pretrial notice was sent in consonance with the laws of Russia and the Respondent was informed that if the claim is not satisfied then matter goes to the Arbitration Court of the St. Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued before filing the application and was an afterthought objection, not made out from the record. The emails relied upon the Adjudicating Authority are not directed to raise a pre-existing dispute rather the said emails are exchanged by the parties regarding the improvement in the operation and sales and has nothing to do with the goods which are now alleged to be substandard or defective. Argument of the Respondent that the Appellant has invoked the arbitration in the pre-trial notice is also neither here nor there in view of the fact that firstly, Section 21 of the Act would apply only to the Arbitral proceedings in India as has been held by the Delhi High Court in the case of Raffles Design International India Pvt. Ltd. (Supra) and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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