TaxTMI 
TaxTMI 
2021 (5) TMI 272
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....any filed the Company Petition to initiate CIRP against the Applicant Company, relying on the agreement filed at page No. 81-83 of the captioned petition between the Applicant Company and the Respondent Company. The terms and conditions of the agreement is annexed here to the application at page No. 13-16. c) It is averred that as per the terms and conditions of the Agreement referred by the respondent Company in the petition the parties must refer the dispute arising under the agreement to the sole arbitrator but the respondent company without adhering to the terms and conditions of the agreement filed the petition which is not admissible as per the law. d) It is averred that as per Section 8 of the Arbitration and Conciliation Act, 1996 that a Judicial Authority shall, on the basis of the Arbitration agreement between the parties, direct the parties to go for arbitration. It also enlists conditions precedent which need fulfillment before a reference can be made as per the terms of the 1996 Act. e) It is averred that Hon'ble Supreme Court in P. Anand Gajapathi Raju & Ors. V.P.V.G. Raju (Died) & Ors. 2., while iterating the periphery of Section 8 of the 1996 Act, said tha....
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....plicant demanding to repay the amount. Inspite of responding to the notices, the applicant had neither paid the amounts, nor disputed existence of its liability, but came forward seeking reference of the dispute to arbitrator. e. Further stated that even though there is an arbitration clause in the agreement between the parties, still by virtue of the settled Law that, the subsequent special enactment prevails over the previous special enactment, the company petition as had been filed by the Respondent under the provision of I & B Code, 2016 shall survive and the matter can't be referred to the arbitration. f. In view of the Hon'ble Mumbai Judgment the situation is entirely different and further all the legal aspects were not decided and determined by the NCLT, Mumbai Bench. The Applicant without going into the merits of the case which the NCLT, Mumbai Bench has passed the orders, the Applicant seems to have merely understood that, when there is an arbitration clause, then the same should be referred, which is not what the Hon'ble Mumbai Bench has ruled. On perusal of the order Adjudicating Authority was not satisfied that a default has occurred. The disputes that f....
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.... law laid down by the Hon'ble Supreme Court. Thus praying the Tribunal to allow the Application directing the parties to refer the dispute to arbitration as per Clause 12 of the agreement entered between the parties. 5. We have gone through the case records, the present application i.e. IA No. 1066/2020 is filed seeking to refer the dispute or difference to arbitration as per the clause 12 of the agreement referred by the Respondent Company at Page Nos. 81-83 in the Company Petition C.P.I.B. No. 331/9/HDB/2020. 6. Counsel for corporate debtor/Applicant has submitted that as per the terms and conditions of the Agreement referred by the respondent Company in the petition the parties must refer the dispute arising under the agreement to the sole arbitrator but the respondent company without adhering to the terms and conditions of the agreement filed the petition which is not admissible as per the law. 7. In support of his contentions corporate debtor has referred the decision of the Hon'ble Supreme Court in the matter of P. Anand Gajapathi Raju & Others vs. P.V.G. Raju (Died) & Others while iterating the periphery of the Section 8 of the 1996 Act. The Applicant also referre....
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....cable in the provisions of the IBC, 2016. The legislators while framing the I & B Code, 2016 has taken various aspects specifically incorporated Section 238 in the Act, which reads as under: "The provisions of this code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instruments having effect by virtue of law. By virtue of the above Section 238 of the Code, it shows that when there is any other act which is inconsistent with the provisions of the Code, then provisions of the Code shall prevail upon. I & B Code, 2016 is also a special enactment passed by the parliament and it is also a settled law, when there is inconsistency between the two special enactments. Operational creditor submitted that subsequent special enactment prevails over the previous special enactment, the Company petition has filed by the respondent herein under the provisions of I & B Code, 2016 cannot be referred to arbitration. 13. He further averred that if once the operational creditor is successful in demonstrating that there is debt and default, that the debt amount is more than Rs. 1 crore and further that inspite of issu....
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....on by the Applicant-operational creditor, notwithstanding the fact that such agreement provided for reference of a dispute arising between the parties in relation to a claim through arbitration. Even otherwise, Section 238 of the I & B Code, which has an overriding effect over the existing laws or any other law or contract, would not admit of the alternative remedy being a disabling provision for operational creditor to seek resolution of a dispute in regard to operational debt claimed against the corporate debtor by triggering the CIRP". 18. Accordingly he prayed for dismissal of the IA and prayed for admission of the company petition. 19. Heard both the counsels and gone through the case laws submitted by the counsels in support of their submissions. We are of the view that available of the alternative remedy cannot be the reason for not considering the application before us as regards to the debt and default of the corporate debtor as laid down by the NCLAT. The existence of pre-existing dispute as laid down by the corporate debtor is being demonstrated that a suit was pending in respect of operational debt, in respect whereof corporate debtor was alleged to have defaulted the....