# In the matter of Balaji Enterprise Vs. Gammon India Limited & Ors. Company Appeal (AT) No. 168-2017

> NCLAT judgment dated 2017-11-10. Citation: TCN-2017-NCLAT-00073. The case involves an appeal against the order of the Adjudicating Authority (National Company…

- **Court:** NCLAT
- **Order date:** 10 Nov 2017
- **Citation:** TCN-2017-NCLAT-00073
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclat-new-delhi/balaji-enterprise-vs-gammon-india-limited-ors-company-appeal-6fdcd5c2

## Summary

### Background

The case involves an appeal against the order of the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, which dismissed an application filed by the Appellant (Operational Creditor) under Section 9 of the Insolvency and Bankruptcy Code, 2016, for initiating a Corporate Resolution Process against the Respondent-Gammon India Limited. The Adjudicating Authority dismissed the application because the Operational Creditor had initiated arbitration proceedings before issuing a demand notice under Section 8(2) of the IBC.

## Facts

Balaji Enterprise, the Appellant (Operational Creditor), filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016, to initiate a Corporate Resolution Process against Gammon India Limited, the Respondent. The Adjudicating Authority dismissed the application because Balaji Enterprise had initiated arbitration proceedings on 2017-01-05 by issuing a notice to Gammon India Limited for referring the dispute to arbitration under Section 21 of the Arbitration and Conciliation Act, 1996, before issuing a demand notice under Section 8(2) of the IBC. The Adjudicating Authority observed that the Corporate Debtor had neither brought to the notice of the Operational Creditor the existence of pendency of any suit or arbitration proceedings filed nor repaid the

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## Issues and analysis

### Issue 1: Whether the initiation of arbitration proceedings by the Operational Creditor before issuing a …

**Ratio:** Section 21 of the Arbitration and Conciliation Act, 1996, states that arbitration

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**Reasoning:** The court reasoned that since the Operational Creditor initiated arbitration proceedings

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**Interpretation:** The interpretation is that the initiation of arbitration proceedings prior to

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**Application:** In this specific case, the Operational Creditor initiated arbitration

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## Parties

- **Judges:** S.J. Mukhop…; A.I.S. C…; +1 more
- **Appellants:** Balaji Ente…
- **Respondents:** Gammon India…

## Timeline

- **2017-01-05 — Initiation of…**: The Operational Creditor initiated arbitration proceedings by issuing a notice to the…
- **2017-07-19 — Order by Adjudicating…**: The Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, dismissed the…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 9 — Application for initiation of corporate insolvency…](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-9)

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