2022 (5) TMI 759

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....r petitioner that a demand notice was issued by the respondent, which was duly responded. A counter-demand was made on the respondent which has not been paid and even the respondent was directed to agree to reference of disputes. On failure of the respondent, the present petition has been filed. 3. Learned counsel for respondent submits that respondent has already filed a petition under Section 9 of the Insolvency and Bankruptcy Code, which is pending before the National Company Law Tribunal (NCLT). Consequently, the remedy of the petitioner is to file an application under Section 8 of the Arbitration and Conciliation Act (Arbitration Act, for short) before the NCLT for reference of the disputes to arbitration. 4. He further submits t....

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....ement or the fact that it contains an arbitration clause. 8. Respondent had issued a demand notice demanding certain payment of unpaid operational dues from the petitioner by its demand letter dated 31.12.2021. 9. The demand letter was responded to by the petitioner by its reply-cum-notice of dispute dated 13.01.2021. In the said reply while disputing the claim of the respondent, petitioner had in paragraph 4(i) called upon the respondent to pay a sum of Rs.1,97,70,192/- to the petitioner and thereafter, in the last paragraph contended that clearly the disputes had arisen and consequently proceeded to appoint an Arbitrator under clause 17 of the collaboration agreement. 10. In view of the above, it clearly cannot be held that no de....

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....laced by learned counsel for respondent on Indus Biotech Private Ltd.(supra) is misplaced. The Supreme Court in Indus Biotech Private Ltd.(supra) has held that the proceedings under the Insolvency and Bankruptcy Code would take precedence and NCLT would have to adjudicate the petition filed before it on its merit without being influenced by the pendency of the application filed under Section 8 of the Arbitration Act. 14. The Supreme Court has categorically held that the adjudicating authority i.e., NCLT has a duty to advert to the contentions put forth on the application filed under the Insolvency and Bankruptcy Code and to examine the material placed before it and record its satisfaction as to whether there is a default or not. 15. T....