Calcutta High Court
R S Fuel Pvt Ltd vs Ankit Metal And Power Ltd on 22 January, 2024
Author: Moushumi Bhattacharya
Bench: Moushumi Bhattacharya
OCD-6 to 27
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
(Commercial Division)
AP-COM/1/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
AND
AP-COM/2/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
AND
AP-COM/3/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
AND
AP-COM/4/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
AND
AP-COM/5/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
2
AND
AP-COM/6/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
AND
AP-COM/7/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
AND
AP-COM/8/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
AND
AP-COM/9/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
AND
AP-COM/10/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
AND
3
AP-COM/12/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
AND
AP-COM/13/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
AND
AP-COM/14/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
AND
AP-COM/15/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
AND
AP-COM/16/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
AND
AP-COM/17/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
4
AND
AP-COM/18/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
AND
AP-COM/19/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
AND
AP-COM/20/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
AND
AP-COM/21/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
AND
AP-COM/22/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
AND
5
AP-COM/23/2024
R S FUEL PVT LTD
VS
ANKIT METAL AND POWER LTD
BEFORE:
The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
Date : 22nd January, 2024.
Appearance:
Ms. Rakhi Purnima Paul, Adv.
Ms. Vedika Sureka, Adv.
Mr. Snehashis Sen, Adv.
Mr. Danyal Ahmed, Adv.
The Court These are applications for extension of the Arbitrator's
mandate under Sections 29-A(4) and (5) of The Arbitration and Conciliation
Act, 1996.
The reference was commenced by the notice sent by the respondent
before this Court (claimant in the arbitration) on 23rd March, 2018. Pleadings
were completed thereafter on 22nd February, 2022 and the petitioner sought for
extension of the Arbitrator's mandate by filing an application before the Court.
The respondent filed an application thereafter for extension of the mandate and
the Court granted the extension by an order dated 28th August, 2023 for a
period of four months. The mandate of the Arbitrator hence expired on and
from 28th December, 2023.
Learned counsel appearing for the petitioner (respondent in the
arbitration) states that the present application was filed before the mandate
terminated, first online on 22nd December, 2023 and thereafter physically on
2nd January, 2024. The issue before the Court is not with regard to termination
of the mandate or whether the application for extension was made within time.
The issue is whether the respondent/ claimant, who went into Corporate
Insolvency Resolution Process under the provisions of the Insolvency and
Bankruptcy Code, 2016 (IBC) on 20th December, 2023, can oppose publishing
of the Award to the extent of the counter-claim of the petitioner herein.
Learned counsel appearing for the respondent/ claimant relies on
Section 14 of the IBC in support of the above contention.
Section 14(1)(a) of the IBC, 2016, bars institution of suits or
continuation of pending suits or proceedings against the corporate debtor,
including execution of any judgment, decree or order in any Court of law,
Tribunal, arbitration panel or other authority. The respondent before the
Court is the claimant in the arbitration. Hence, even on a cursory basis,
Section 14(1)(a) would apply to institution/continuation of suits and other
proceedings against the respondent/claimant/corporate debtor.
In the present case, the respondent/corporate debtor has filed the
statement of claim in the arbitration against the petitioner herein. The stand
taken on behalf of the respondent/claimant/corporate debtor that making of
the arbitral award would only fall foul to the extent of the counter-claim filed
by the petitioner (respondent in the arbitration) is taking the interpretation
of Section 14(1)(a) of the IBC too far in the sense of being hyper-technical,
divisive and self-serving.
Section 14(1)(a) can be pressed to service in two situations;
i. If the respondent/corporate debtor had been at the receiving end of
an arbitration initiated by the petitioner before this Court, and
ii. If such arbitration had continued after 20th December, 2023 when
the respondent went into CIRP.
None of the two conditions are present in this case. The
respondent/claimant/corporate debtor therefore, cannot, rely on Section
14(1)(a) to stall the making of the Award to the extent of the award being
made on the counter-claim of the petitioner (respondent in the arbitration.)
The other significant fact, which also turns the case against the
prayer made on behalf of the respondent/claimant, is a letter of the learned
Arbitrator dated 8th January, 2024 by which the parties were informed that
the Arbitrator had already made and published the Award on 28th December,
2023 and that the Award is lying ready for delivery. Even though the
respondent submits that not much credence can be given to this letter,
counsel does not have any evidence at hand to disprove the existence as well
as the contents of this letter.
In any event, the Court finds no basis either in Section 14(1)(a) of the
IBC and least of all in the provisions of The Arbitration and Conciliation Act,
1996 under which the making of an Award can be stalled or the Arbitrator
can be prevented from making/publishing the Award once the Award has
been made and is ready for delivery. Splitting the Award in two; allowing the
part relating to the claim of the claimant to be published and the part with
regard to the counter-claim being stopped, is an unnatural course of
proceedings and one that is neither recognised in law nor in equity.
The stand taken by the respondent/claimant is all the more than
surprising since the Court would have expected the claimant to be interested
in publishing of the Award. The stand taken is indeed self-serving, if not
entirely curious.
AP-COM/1/2024, AP-COM/2/2024, AP-COM/3/2024, AP-
COM/4/2024, AP-COM/5/2024, AP-COM/6/2024, AP-COM/7/2024, AP-
COM/8/2024, AP-COM/9/2024, AP-COM/10/2024, AP-COM/12/2024, AP-
COM/13/2024, AP-COM/14/2024, AP-COM/15/2024, AP-COM/16/2024,
AP-COM/17/2024, AP-COM/18/2024, AP-COM/19/2024, AP-
COM/20/2024, AP-COM/21/2024, AP-COM/22/2024 and AP-
COM/23/2024 are accordingly allowed and disposed of by extending the
mandate of the learned Arbitrator for one month from 28th December, 2023
for the learned Arbitrator to take steps for publishing the Award.
(MOUSHUMI BHATTACHARYA, J.)
sg/kc.
