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2023 (6) TMI 504 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAIInitiation of CIRP - Recovery proceedings - Execution of Ex-parte order, passed in arbitration proceedings - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- A Dispute, in existence, means and includes raising a Dispute, before a Court of Law or an Arbitral Tribunal, before receipt of Notice, under Section 8 of the I & B Code, 2016. Further, Dispute, continues at stage, where challenge to an Arbitral Award, in an Appeal, is projected by a Party, as opined by this Tribunal - So long as a Dispute, truly exists in fact and it is not spurious or an imaginary, and not a hypothetical one, an Adjudicating Authority / Tribunal, is to reject, the Petition / Application, filed under the I & B Code, 2016 - an Arbitration Proceedings, and I & B Code Proceedings, cannot go on together, in the considered opinion of this Tribunal. By virtue of the Arbitration Clause, as per Agreement, the Appellant, had secured the Ex-parte Award, and as against the same, the Respondent / Corporate Debtor, filed an Appeal, in terms of Section 34 of the Act. The very fact that an Appeal, was filed against the Ex-parte Award, by the Respondent, Prima Facie, there exists a Pre-existing Dispute - It cannot be gainsaid that, for initiating a Corporate Insolvency Resolution Process, against the Corporate Debtor, there ought to be no real dispute, existing between the respective Parties, to the Debt, owed in question. So long as the Arbitration Award, was challenged under the relevant Section of the Arbitration and Conciliation Act, 1996, the Operational Debt, in the instant Appeal, is considered to be under Dispute, as opined by this Tribunal. In so far as the amount awarded in Award, is not Disputed, and in reality, due to efflux of time, the Interest, gets added on the Award Due Amount. As such, the difference in the Amount, mentioned in the Demand Notice, dated 21.02.2019, in the main Petition, and in service Record of Default, with the Information Utility, produced by the Appellant with Affidavit, dated 09.03.2021, will not exhibit any incompatibility, so as to be of any assistance, to the Respondent / Corporate Debtor. This Tribunal, comes to an inescapable, inevitable and irresistible conclusion that the view arrived at by the Adjudicating Authority’ (‘National Company Law Tribunal’, Bengaluru Bench), in dismissing the main CP (IB) No. 276 / BB / 2019 (filed by the Appellant / Petitioner / Operational Creditor, for recovering the Sum, awarded in Arbitration Proceedings), is free from any Legal Errors - appeal dismissed.
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