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TMI Blog2020 (1) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 confidence in the prospective Resolution Applicants minds to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion' 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 in "Alchemist Asset Reconstruction Company Ltd. v. M/s Hotel Gaudavan Pvt. Ltd & Ors. in Civil Appeal no. 16929 of 2017". In the said case the Hon'ble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itiation 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 announcement of the initiation of corporate insolvency resolution process and call for the submission of claims under section 15; and (c) appoint an interim resolution professional in the manner as laid down in section 16. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by virtue 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 such arbitration proceedings. Therefore, this Appellate Tribunal allowed the 'claim petition' filed by the 'Corporate Debtor' of the said case to proceed with. For determination of the claim, it was also noticed that the 'counter-claim' or part of it is set-off with the claim, this Appellate Tribunal observed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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