TMI Blog2018 (7) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... cordingly, the petition is admitted and the Official Liquidator attached to this Court is appointed as the Provisional Liquidator. He is directed to take over all the assets, books of accounts and records of the respondent-company forthwith. The citations be published in the Delhi editions of the newspapers ‘Statesman’ (English) and ‘Veer Arjun’ (Hindi), as well as in the Delhi Gazette, at least 14 days prior to the next date of hearing. The cost of publication is to be borne by the petitioner who shall deposit a sum ₹ 75,000/- with the Official Liquidator within 2 weeks, subject to any further amounts that may be called for by the liquidator for this purpose, if required. List on 30.10.2018. - CO.PET. 508/2014 - - - Dated:- 9-7-2018 - MR. JAYANT NATH J. Petitioner Through: Mr. Vivek Sibal and Mr. Jittender Batta, Advs. Respondent Through: Mr. Rakesh Kumar and Ms. Anubha Singh, Advs. JAYANT NATH, J. (ORAL) 1. This petition is filed under section 433(e) and 433(f) read with section 434 439 (1) (b) of the Companies Act, 1956 seeking to wind up the respondent company. Some of the basic facts are that the respondent company entered into contract with one E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n relied upon on the balance sheet of the respondent company as on 31.3.2015 where it is admitted that a sum of ₹ 16,11,95,199/- is payable to the petitioner company. Reliance is also placed on a communication dated 22.1.2015 where the respondent has sought a one time settlement of the entire loan and has made an offer to pay ₹ 7 crores as one time settlement. 6. Learned counsel appearing for the respondent has pleaded as follows:- (i) He submits that pursuant to the terms of the agreement between the parties the respondent had taken out an insurance against commercial and political default of the loan. He pleads that the respondent has duly paid the instalments for the said insurance. However, he further states that the petitioner has given no information as to whether they have recovered money from the respondent company and how much. Hence, he submits that there is bona fide dispute regarding the dues of the respondent. (ii) He further submits that there is an arbitration clause between the parties. Clause 12 of the Agreement provides that the agreement is to be governed by the laws of Sweden. Further the disputes between the parties is to be adjudicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be obliged to return the money to the insurance company. Hence, even otherwise there is no merit in the said plea raised by the petitioner. 10. As far as the issue of arbitration is concerned the matter is squarely covered by the judgment of the Supreme Court in Booz Allen and Hamilton INC vs. SBI Home Finance Ltd. and Others, (2011) 5 SCC 532 where the Supreme Court held as follows:- 36. The well recognized examples of non-arbitrable disputes are: (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes. ...... 42. The distinction between disputes which are capable of being decided by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rbitration is ousted. This court in HDFC Bank Ltd. vs. Satpal Singh Bakhsi (supra) held as follows:- 13. What is discernible from the above is that all disputes relating to right in personam are arbitrable and choice is given to the parties to choose this alternate forum. On the other hand, those relating to right in rem having inherent public interest are not arbitrable and the parties choice to choose forum of arbitration is ousted. Examined in this line, it is obvious that a claim of money by the bank or financial institution against the borrower cannot be treated as right in rem . Each claim involves adjudication whether, on the facts of that case, money is payable by the borrower to the bank/financial institution and if so to what extent. Each case is the decision on the facts of that case with no general ramifications. A judgment/decision of the Debt Recovery Tribunal deciding a particular claim can never be right in rem and is a right in personam as it decides the individual case/claim before it with no elements of any public interest. 13. Hence, the above judgment does not help the respondent in any manner. On the contrary, it categorically states th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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