2020 (1) TMI 305

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....rivate Limited' (Corporate Debtor), the Appellant - 'Subodh Kumar Agrawal' (Resolution Professional) filed Interlocutory Application seeking the following relief : "a. This Adjudicating Authority may pass an order or direction to the Hon'ble Arbitral Tribunal adjudicating the disputes of Corporate Debtor (GJHPL) and its operator (EIH) to pronounce the final award which is pending before them to enable the Resolution Professional to conduct the Corporate Insolvency Process in a smooth and expeditious manner which will enable to maximise the value of the assets of the Corporate Debtor and to protect the interest of all stakeholders connected thereto. b. To pass necessary direction or order to restore confiden....

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.... address of the Respondents, let notice be also issued through e-mail. Post the case 'for admission' on 3rd August, 2018. 4. During the pendency of this appeal and the proceedings before the Adjudicating Authority, the Arbitral Tribunal will proceed with the claim and counter claim of the parties and may record appropriate order of award, but keep it in a sealed cover till the decision of this Appellate Tribunal." 2. Learned counsel appearing on behalf of the Resolution Professional submits that they have no objection if the counter claim decided by the Arbitral Tribunal. 3. As the claim of the Corporate Debtor can be determined only after determination of counter claim made by the Appellant in th....

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....he Adjudicating Authority has no jurisdiction to set aside the order passed by the Indian Council of Arbitration. 5. In the said case i.e. 'K.S. Oil Ltd.' (Supra), this Appellate Tribunal noted the decision of the Hon'ble Supreme Court and other provisions of the 'Insolvency and Bankruptcy Code' and observed : '6. On hearing the parties we are of the view that the Adjudicating Authority rightly held that the Adjudicating Authority has no jurisdiction to set aside the order passed by the Indian Council of Arbitration i.e. order dated 3rd August, 2017. 7. So far as the question relating the continuation of arbitral proceeding is concerned, the issue stands decided by the Hon'ble Supreme Court i....

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.... to receive and collect all the claims submitted by the creditors pursuant to Section 15. This is apparent from Sub-section (a) of Section 18 of I&B Code. Pursuant to public announcement of initiation of Corporate Insolvency Resolution Process calling for submission of the claim under Section 15, the Adjudicating Authority is required to collect the claims as stipulated under Sub-section 1 (b) of Section 13 and reads as follows: "13. Declaration of moratorium and public announcement. - (1) The Adjudicating Authority, after admission of the application under section 7 or section 9 or section 10, shall, by order - (a) declare a moratorium for the purposes referred to in section 14; (b) cause a public announ....

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....by creditors to him, pursuant to the public announcement made under sections 13 and 15; ........" 11. The Interim Resolution Professional, thereafter on collection of all the claim received against the Corporate Debtor is required to constitute Committee of Creditors under Section 21, which in its term is required to notice the claim for the purpose of preparation of Information Memorandum under Section 29. 12. As per Section 238, the I&B Code override other laws, as quoted below: "238. Provisions of this Code to override other laws. -The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect ....

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....tor' is a 'separate proceedings' than that of the 'Arbitral proceedings' filed by the 'Claimant'. However, they cannot be segregated and can go on simultaneously together. The claim of the Respondent cannot be determined by the 'Arbitral Tribunal' during the period of 'Moratorium' passed by the Adjudicating Authority. In such situation, as it cannot be decided as to what amount can be taken, we hold that the 'counter-claim' filed by the 'Corporate Debtor' also cannot proceed. 7. In 'Jharkhand Bijli Vitran Nigam Ltd.' 'claim petition' was filed by the 'Corporate Debtor'. The order of Moratorium passed by the Adjudicating Authority was not applicable to suc....