Facts of The Case
The NCLT Kolkata Bench comprising of Shri Rajasekhar V.K. (Judicial Member) and Shri Balraj Joshi (Technical Member) while deciding a petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 ("IBC"), titled Viom Infra Ventures Ltd. v Bahula Infotech Pvt. Ltd., has held that Corporate Insolvency Resolution Process ("CIRP") can be initiated based on an Arbitral Award if the said Award has not been challenged. The order was passed on 18.04.2022.
Facts Of The Case The Corporate Debtor was in process of entering into contracts with the Government Authorities in respect of the scheme of 'Smart City and Data Centre Projects', hence was in requirement of various types of equipments. The Operational Creditor (Viom Infra Ventures Ltd.) agreed to provide equipments lying in its possession and also agreed to acquire certain equipments and provide them on monthly lease/rental basis to the Corporate Debtor. A Master Lease Agreement ('Agreement') was executed between the parties on 09.07.2018. When disputes had arisen in terms of the Agreement, the matter was referred to arbitration wherein the Corporate Debtor was directed to pay an amount of Rs.27,58,58,278/- to the Operational Creditor, the latter could only pay Rs. 15,92,78,600/-. On 07.06.2021 the Operational Creditor had issued a Demand Notice under Section 8 of the IBC to the Corporate Debtor for the remaining amount. Thereafter, a petition under Section 9 of the IBC was filed before the Adjudicating Authority on 29.07.2021 by the Operational Creditor, seeking initiation of CIRP against the Corporate Debtor for defaulting on payment of Rs.12,28,74,980.61/-.
Contentions Of The Operational Creditor
The Operational Creditor submitted that after certain disputes had arisen in terms of the Agreement between the parties, the Corporate Debtor had cancelled the Agreement on 04.09.2019, requesting waiver of lease rent. The Operational Creditor had intimated the Corporate Debtor that the cancellation of the Agreement would give rise to claim for liquidated damages and outstanding rentals
It was submitted that on 24.10.2019 the Operational Creditor had invoked Arbitration Clause of the Agreement and a Senior Advocate was appointed as the Sole Arbitrator. On 27.08.2020 the Arbitral Tribunal, after hearing the contentions of the parties, passed an arbitral award directing the Corporate Debtor to pay a sum of Rs.27,58,58,278/- to the Operational Creditor, within two months, failing which payment of interest calculated at 9% per annum on the aforesaid amount until the date of payment was also payable.
Observations Made By The Adjudicating Authority
The Adjudicating Authority framed the following two issues for adjudication:
1. Is there any pre-existing dispute between the parties?
2. Can CIRP be initiated based on Arbitral Award?
The Adjudicating Authority observed that the Corporate Debtor has neither raised any dispute with respect to the services of the Operational Creditor nor challenged the Arbitral Award dated 27.08.2020 by way of Section 34 petition under the Arbitration and Conciliation Act, 1996. Therefore, the debt is not disputed.
It was further observed that in a petition under Section 9 of IBC, the prime point of defence is the existence of the dispute and/or pendency of a suit or arbitration prior to the receipt of the demand notice under Section 8 of the IBC, however, in the instant case both these defences are not present.
The Adjudicating Authority placed reliance on the Supreme Court judgment in K. Kishan v. Vijay Nirman Company Private Limited, (2018) 17 SCC 662, wherein it has been held that in order to initiate CIRP in case of arbitral award under Section 9 of IBC, the debt needs to be undisputed. A CIRP cannot not be initiated on basis of Arbitral Award on the following grounds:
1. When a counterclaim exceeding the claim awarded was rejected by the Arbitral Tribunal on merits, and such rejection is also a matter of challenge before the Courts; and
2. When a challenge had also been filed against the Arbitral Award.
The Adjudicating Authority admitted the petition filed under Section 9 of IBC and initiated CIRP against the Corporate Debtor. Mr. Anneel Saraogi has been appointed as the Interim Resolution Professional.
Case Title: Viom Infra Ventures Limited v Bahula Infotech Private Limited, C.P (IB) No. 197/KB/2021.