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2018 (2) TMI 1095 - Tri - Insolvency and BankruptcyCorporate Insolvency Resolution Process - Whether the Award amount is an operational debt?- Whether Petitioner, i.e., TVS Interconnect Systems Private Limited is an Operational Creditor - Whether there exists any dispute relating to the operational debt? - enforce the Arbitration Agreement - suppression of material facts - Held that:- In view of the Assignment Agreement, it can be said that the Petitioner is an 'Assignee' of the operational debt due to MOKA from ORG. The Petitioner, in this case is not seeking initiation of Corporate Insolvency Resolution Process on the basis of the debt assigned to it, but on the basis of the Arbitral Award. Therefore, Petitioner although can be termed as 'Operational Creditor' in respect of the operational debt assigned to it, it cannot enforce the Arbitration Agreement which is in favour of MOKA the Assignor unless there is specific assignment of the arbitral award amount to the Petitioner provided the Award amount is having the characteristics of operational debt. Therefore, the Petitioner being an Assignee under the Assignment Agreement of the operational debt cannot maintain this Petition for recovery of arbitral Award amount which has not been assigned to it. The material on record show that the Petitioner obtained assigned debt from MOKA on 14.11.2013 during the pendency of arbitral proceedings and the same was also brought to the notice of the learned Arbitrator. It is also a fact that MOKA also filed Section 138, N.I. Act case before the Criminal Court, and that fact was in the knowledge of the Petitioner. But Petitioner made self-serving statement in the Reply Affidavit that only recently it came to know about the winding up proceedings. Therefore, it is a clear case where the Petitioner cannot deny knowledge about the winding up proceedings filed by MOKA which is Assignor of the debt of ORG. Therefore, such a material fact has been suppressed by the Petitioner. The contract have to be construed strictly without altering the nature of the contract, as it may affect the interest of either of the parties adversely. In the case on hand, the Assignment Agreement is only with reference to the operational debt but not to the Award amount. Therefore, the assignment contract if strictly construed cannot take in its ambit the arbitral Award amount.
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