Jharkhand Bijli Vitran Nigam Ltd vs Ivrcl Ltd. (Corporate Debtor) & Anr
- CitationCompany Appeal (AT) (Insolvency) No. 285 of 2018
Ratio decidendi
The rule this decision rests on
Where the corporate debtor's claim and the creditor's counter-claim arise in the same arbitral proceeding and the counter-claim may be set off against the corporate debtor's claim, both claims are to be heard together by the Arbitral Tribunal in the absence of any bar under the Insolvency and Bankruptcy Code, 2016, and the Adjudicating Authority need not determine the counter-claim itself. Where the Arbitral Tribunal, on determining the claim and counter-claim together, finds that the corporate debtor is liable to pay any amount, no recovery of that amount may be made during the moratorium period.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Jharkhand Bijli Vitran Nigam Ltd. ...Appellant
Vs
IVRCL Ltd. (Corporate Debtor) & Anr. ....Respondent
Present: For Appellant: Mr. Navin Kumar, Mr. Himanshu Shekhar, Mr. Aabhas Parimal, Mr. Jamnesh Kumar and Mr. Sharat Kumat, Advocates. For Respondent: Ms. Niraj Kumar and Mr. Shashank Agarwal, Advocates for R-1. Mr. Sutanu Sinha, RP.
ORDER
03.08.2018: On 11th July, 2018, when the matter was taken up, following order was passed:
"11.07.2018-- The question arises for consideration in this appeal is whether a counter claim can proceed during the period of 'Moratorium' while the Adjudicating Authority (National Company Law Tribunal) allowed the 'Corporate Debtor' to pursue the claim before the Arbitral Tribunal.
2. According to the Appellant, the question of determination of counter claim during the period of 'Moratorium' should have been decided by the Adjudicating Authority without leaving it open to be decided by the Arbitral Tribunal.
3. Let notice be issued on Respondents by speed post. Requisite along with process fee, if not filed, be filed by 13 th July, 2018. If the Appellant provides the e-mail address of the Respondents, let notice be also issued through e-mail.
-2- Post the case 'for admission' on 3rd August, 2018.
4. During the pendency of this appeal and the proceedings before the Adjudicating Authority, the Arbitral Tribunal will roceed 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 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.
[Justice S. J. Mukhopadhaya] Chairperson
[Justice Bansi Lal Bhat] Member (Judicial) am/uk
Company Appeal (AT) (Insolvency) No. 285 of 2018
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free