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6. Comparison of the observations made in the NCLAT order and the arbitral award reflects a conflict of interest and previous involvement of the Presiding Arbitrator in the case. The issue in Respondent's appeal before NCLAT was whether its claims arising after the ICD were rightly excluded from the Resolution Plan. In other words, Respondent was seeking enforcement of post-ICD claims before NCLAT and thereafter in arbitration and Petitioner was objecting to the arbitrability of these very claims before the Arbitral Tribunal, alleging that being outside the approved Resolution Plan, they were extinguished. It was only natural that having taken a decision as the Chairperson, NCLAT that IRP/RP had rightly only collated the claims arising upto the ICD, meaning thereby that future claims were open for adjudication in another forum, the Presiding Arbitrator would not take a contrary decision in arbitration and this apprehension was proved right when the Tribunal actually entertained and allowed the claims of the Respondent, even though they stood extinguished. In fact, the fulcrum of the award is the observation made in the NCLAT order, which is demonstrated from a comparative analysis as follows:-

NCLAT Order dated 19.08.2019 in Final Arbitral Award Dated Company Appeal (AT) Insolvency 21.08.2024 "32. 'Bharat Petro resources Limited' 48. It is not in dispute that the submitted its claim on 5th January, 2018 application under Section 7 of the towards the 'operational debt' amounting Insolvency and Bankruptcy Code, to Rs.9,58,88,886/- as on the Insolvency 2016 ('IBC') was admitted on Commencement Date, which has been 18.07.2017. Thus, 18.07.2017 is the admitted by the 'Resolution insolvency commencement date (ICD).

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7. The observations in the NCLAT order leave no doubt that the arbitral award was nothing but an enforcement of the NCLAT decision and in light of this, it needs no gainsaying that even the exercise of considering and deciding the applications under Sections 12 and 16 of 1996 Act, was an empty formality. The Division Bench of this Court in Kotak Mahindra Bank Ltd. v. Narender Kumar Prajapat, 2023 SCC OnLine Del 3148, has endorsed this position of law and SLP (C) No. 47322/2023 against the said judgment was dismissed. In HRD Corporation (Marcus Oil and Chemical Division) v. GAIL (India) Limited (formerly Gas Authority of India Limited), (2018) 12 SCC 471, the Supreme Court interpreted and ruled on what amounts to 'previous involvement in the case' in Entry 16 of Seventh Schedule of 1996 Act and held as follows:-

35. Learned Senior counsel for the Petitioner laboured hard to compare the observations in the NCLAT order and the award to bring home the point that the fulcrum of the award is the observation of NCLAT. To my mind, this comparison is misplaced. The Arbitral Tribunal came to an independent finding that under the insolvency regime, it was not open to the IRP to collate claims of creditors post the ICD. Having rendered this conclusion, the Tribunal made an oblique reference to a similar observation in the NCLAT order. Carefully read, I am unable to reach a conclusion that the finding in the arbitral award on this aspect was, in any manner, influenced by the NCLAT order or based on it and moreover, this is a legal finding applying the provisions in IBC, 2016. The judgments relied on by the Petitioner are distinguishable on facts. In those cases, the Supreme Court found as a matter of fact that there were conflicts of interest and the concerned Judges ought to have recused, which is not the case here. The grounds in the appeal before NCLAT were different from the issues in arbitration. While NCLAT was called upon to decide whether IRP was empowered under IBC to include claims of an Operational Creditor arising post ICD, in arbitration the issue was whether the claims were arbitrable as also adjudication on merits.