TMI Blog2020 (1) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... im, it was also noticed that the 'counter-claim' or part of it is set-off with the claim, this Appellate Tribunal observed that the 'claim' and 'counter-claim' should also be heard together by the Arbitral Tribunal, however, with a clear understanding on such determination the 'Corporate Debtor' is liable to pay certain amount, in such case, no recovery is made during the period of 'Moratorium'. There are no merit in the appeal - appeal dismissed. - Company Appeal (AT) (Insolvency) No. 1122 OF 2019 - - - Dated:- 24-10-2019 - Justice S.J. Mukhopadhaya, Chairperson And Venugopal M. And Jarat Kumar Jain, Judicial Member Sumant Batra, Ms. Kiran Sharma and Ms. Priyanka Anand, Advs. for the Appellant. Sudipto Sarkar, Sr. Adv. Abhijeet Sinha, Arijit Mazumdar, Shambhu Nandi and Saikat Sarkar, Advs. for the Respondent. ORDER 1. In the 'Corporate Insolvency Resolution Process' against 'Golden Jubilee Hotels Private Limited' (Corporate Debtor), the Appellant - 'Subodh Kumar Agrawal' (Resolution Professional) filed Interlocutory Application seeking the following relief : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the same very arbitral proceeding and if counter claim or part of it is set off with the claim made by the Corporate Debtor, we are of the view that both the claim and the counter claim of parties should be heard together by the Arbitral Tribunal in absence of any bar under Insolvency and Bankruptcy Code, 2016. 4. However, on determination, if it is found that the Corporate Debtor is liable to pay certain amount, in such case, no recovery can be made during the period of moratorium. 5. The appeal stands disposed of with aforesaid observation. No cost.' 3. Learned counsel for the Appellant submits that the 'Claim' and the 'Counter-claim' stand in the same footings for all purpose. There are different arbitral proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid moratorium is non est in law. 8. The aforesaid principle will also be applicable to the pending arbitral proceeding. 9. The next question will arise as to where the party will move in respect to the claim as has been preferred before the Arbitral Tribunal? In this respect we may observe that after initiation of Corporate Insolvency Resolution Process, all creditors are required to file claim before the Resolution Professional pursuant to declaration of moratorium and public announcement under Section 13. It is the duty of the Interim Resolution Professional 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any such law. Thereby, the I B Code will prevail over the Arbitration and Conciliation Act, 1996. 13. In view of the provisions as referred to the above and the decision of the Hon'ble Supreme Court in Alchemist Asset Reconstruction Company Ltd. v. M/s Hotel Gaudavan Pvt. Ltd Ors. we hold that the arbitral proceeding pending between 'M/s K. S. Oil Ltd.' (Corporate Debtor) and 'The State Trade Corporation of India Ltd.' (Financial Creditor) before the Indian Council of Arbitration cannot proceed during the moratorium period. 14. For the reasons recorded above while we are not inclined to interfere with the part of the impugned order whereby the Adjudicating Authority refused to set aside the order passed by the Indian Council of Arbitration, declare that the Arbitration Tribunal/Indian council of Arbitration cannot proceed with the arbitral proceeding pending between the parties. Both the parties are directed not to pursue arbitral proceeding before the Arbitration Tribunal/Indian Council of Arbitration till final order is passed by the Adjudication Authority on the resolution plan and completion of the moratorium period. However, it wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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