TaxTMI 
TaxTMI 
2014 (9) TMI 1127
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....rkadas Advocate, Mr. Zai Andhyarujina, Advocate a/w Mr. Rohaan Cama, Advocate, i/b. M/s. Dastur Dadhich & Kalambi Mr. Pranav Sampat, Advocate a/w Ms. Parvati Advocate i/b. M/s. Kaitan & Co. for the Respondent ORDER 1. By this common order, I propose to deal with the applications being C.A.No.225 and 226 of 2014 filed on behalf of the Petitioners, and C.A.No.231 of 2014 filed on behalf of the Respondent Nos. 2 to 5. 2. Vide C.A.No.225 of 2014, the Petitioners have prayed to appoint an Administrator or to expand the role of the Ld. Observer-cum-Facilitator empowering him to not only supervise the sale but also disburse the sale proceeds to discharge the liabilities after due forensic audit, in accordance with the award and to bear all expenses in this regard by Respondent No.1 Company. The Petitioners have further prayed that pending hearing and final disposal of the present application, the Board may stay the sale of cotton portfolio and rights issue, etc. 3. In the C.A. No.226 of 2014 the Petitioners have prayed that that the order dated 25/4/2014 may be modified and an Administrator and/or Special Officer and/or an Independent Committee of Management or such other body....
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....itration was recorded in the Minutes of Board Meeting of the Company held on 7/7/2014 at its Corporate Office. He further submitted that pursuant to the said Minutes, the Members of the two Groups executed Agreements for reference of all old disputes between them. Accordingly, a Three Members Arbitral Tribunal was constituted and the Ld. Arbitrators delivered an Award dated 31/7/2014. However, the said Award is not accepted by the Respondents/Applicants herein and has been challenged by the Applicants by filing Petition No.4772 of 2014 under Section 34 of the Arbitration and Conciliation Act, 1996 before the Civil Judge, Senior Division, Pune, on the grounds more particularly set out therein. The Ld. Counsel therefore submitted that in view of the fact that the parties have entered into an agreement to refer to their disputes to arbitration, this Board ceased to have jurisdiction to entertain the present petition and the present petition is therefore liable to dismissed. 7. In reply, the Ld. Counsel appearing for the Petitioners argued that the aforesaid application is not maintainable for the reason that the Respondent No.1 Company, in whose respect the present Petition under S....
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....pute". 11. At the further outset, I would like to refer other decisions in the cases of [1) Hindustan Petroleum Corporation Ltd. v/s. Pinkcity Midway Petroleums (AIR [2003] SC 2881), [2) SBP & Co. v. Patel Engg. Ltd. ([2005] 8 SCC 618), [3] Rashtriya Ispat Nigam Ltd. vs. Varma Transport Company ([2006] 7 SCC 275, [4] Agri Gold Exims Ltd. vs. Sri Lakshmi Knits and Woven & Ors. ([20071 3 SCC 686), [5] Sumitomo Corpn. vs. CSC Financial Services (Mauritius) Ltd. ([2008] 4 SCC 91), [6] Everest Holding Ltd. vs. Shyam Kumar Shrivastava (Dr. Sharma) ([2008] 16 SCC 774), whereby the Hon'ble Supreme Court has reiterated the same view. 12. Thus, on overall analysis of the aforesaid provision and the decisions cited above, it is evident that Section 8 of the Arbitration Act is pre-emptary and mandatory in nature with respect to referring the Parties to arbitration once the following five test applicable to the said provision are met:- i. Existence of a valid and subsisting agreement between the parties. ii. Parties to the Arbitration agreement and the Parties to the Petition are common. iii. Subject matter of the action is same as subject matter of the Arbi....
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....deem fit and proper in the fact and circumstances of the case. 14. In addition to the above, it is further pertinent to note here that the Respondents / Applicants (in C.A.No.231/14) have themselves challenged the Award by way of filing a Petition under Section 34 of the Arbitration Act before the Civil Judge, Sr. Division, Pune. In such a situation, they are estopped from relying upon a part of the Award which stipulates that the Respondent No.1 Company has been given in their share in the distribution of assets by the Ld. Arbitrators in the said arbitration proceedings and, therefore, the present petition under Section 397/398 of the Act with reference to Respondent No.1 Company are no more sustainable in the CLB. It will not be out of place to mention here that contrary to the stand of the Respondents, the Petitioners are relying upon the Award and are praying to enforce the directions contained therein with respect to the sale proceeds to be received by sale of the plots in question. Be that as it may, since I have held that the Section 8 of the Arbitration Act is not applicable, the Company Application No. 231 of 2014 filed by the Respondents challenging the maintainability....