Analysis of NCLT Judgement in Lion Services Limited vs. Aura Management Services Private Limited

Pendency of execution proceeding under the provisions of the Arbitration and Conciliation Act, 1996 would not exclude the jurisdiction of the Tribunal under the Insolvency and Bankruptcy Code, 2016.

It is submitted that the arbitration award dated 02.12.2013 is in execution and now pending before the Patiala House Courts, New Delhi. The argument looks attractive at the first blush but has no substance in it because the pendency of any proceeding does not create a bar for initiation of Corporate Insolvency Resolution Process against a Corporate Debtor and therefore, the pendency of execution proceeding under the provisions of the Arbitration and Conciliation Act, 1996 would not exclude the jurisdiction of the Tribunal under the Insolvency and Bankruptcy Code, 2016.

The argument also suffers from misconception in as much as the arbitration award could attain finality only after the time for making an application to set aside the award under Section 34 of the Arbitration Act has expired. It is then subject to the provisions of sub section 2 of Section 36 that the award is to be enforced in accordance with the provisions of the Civil Procedure Code in the same manner as if it were a decree of the Court. Admittedly the petitioner is not sleeping over the matter and execution proceeding has already been initiated. The amount under the award has become payable once the execution of the award has been initiated well within time and the period for execution of the award / decree is twelve years. Therefore, it cannot be concluded that the amount under the award is not due and payable as on today within the meaning of Section 3 (12) read with Section 7 (5) (a) of the Code. We have already recorded our satisfaction that the default has occurred and the amount has become due and payable.

Judgement link : https://nclt.gov.in/sites/default/files/final-orders-pdf/LION%20SERVICES.pdf