TMI Blog2018 (8) TMI 1957X X X X Extracts X X X X X X X X Extracts X X X X ..... h petition under the IBC. Since, evidently, there is a pending arbitration proceedings, without going into the other merits of the case, we conclude that the present CP under the IBC is not required, at present. The present petition is not maintainable under section 8(2)(a) of the IBC, 2016 - Petition dismissed. - C. P. No. 141 (IB) of 2018. - - - Dated:- 31-8-2018 - K. Anantha Padmanabha Swamy Judicial Member And S. Vijayaraghavan Technical Member For the Petitioner : Om Prakash Ellanty , Senior Advocate along with Saahil Memon , Sidhartha Srivasthava for Link Legal India Law Services For the Respondent : R. Parthasarathy , Rahul Balaji , Madhan Babu and Vishnu Mohan ORDER K. ANANTHA PADMANABHA SWAMY (JUDICIAL MEMBER) .- 1. Under consideration is a company petition filed by the petitioner herein against the respondent-company under section 9 of the Insolvency and Bankruptcy Code, 2016 (in short the IBC ) read with rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity, the IB Rules) for initiation of the corporate insolvency resolution process against the respondent-company for recovery of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed June 17, 2015 the respondent attached a certificate stating that the petitioner assisted the respondent to complete the CDR restructuring of debt of ₹ 2917.17 crores with the lenders as per mandate dated February 20, 2014 which establishes the fact that the petitioner had completed its scope of work and is entitled to receive the compensation fee as claimed in the final invoice dated September 30, 2014. However, the respondent failed to release the payment by September, 2015 the grace period granted by the petitioner. The petitioner further stated that to their utter shock and surprise received an e-mail dated September 8, 2015 from the respondent wherein the respondent stated that they had never agreed to pay the entire compensation fee as per the terms of the mandate. The petitioner stated that they have issued a legal notice on April 28, 2017 (annexure P24) under section 8 of the IBC calling upon the respondent to pay the unpaid amounts and that the respondents sent a reply letter dated May 20, 2017 wrongly denying the claim of the petitioner. Since the respondent failed to pay the fees, the petitioner filed an application under section 9 of the I and B Code and in v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, (c) the breach of a representation or warranty. It is submitted that in the light of the contents of the notice invoking arbitration by the respondent, there clearly exists an arbitrable dispute against the petitioner for the losses incurred by the respondent. The petitioner rather than appointing an arbitrator within a period of 30 days from December 12, 2017 had chosen to suppress the said fact and filed the present petition which clearly indicates that the petitioner has approached the Tribunal with unclean hands. It is further submitted that in view of the notice dated December 12, 2017 the arbitral proceedings are deemed to have commenced as per section 21 of the Arbitration and Conciliation Act, 1996. Since the petitioner did not respond, the respondent has approached the hon'ble High Court, Bombay under section 11(6)(a) of the Arbitration and Conciliation Act, 1996 praying for appointment of an arbitrator on behalf of the petitioner and the said application is pending in Arbitration Application (L) No. 42 of 2018. Hence, filing of the present application is entirely misconceived and the present application ought to be dismissed in view of the existing disputes as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on clause that has been invoked by the respondent. The respondent further contended that the petitioner withdrew the earlier proceedings initiated under the IBC prior to the present case in toto and that before institution of the present proceedings an arbitration notice was issued. Moreover, the petitioner is deemed to have accepted the existence of disputes that are to be referred to arbitration by virtue of its failure to reply to the notice invoking arbitration dated December 12, 2017 made by the respondent. It is further stated in the written submissions of the respondent that the hon'ble Bombay High Court has passed an order dated July 26, 2018, in Commercial Arbitration Application No. 71 of 2018, appointing Mr. Arif S. Doctor, senior advocate as sole arbitrator to adjudicate the disputes, by consent of parties. On such grounds, the respondent prayed not to allow the present petition. 6. Heard the submissions made by the learned senior counsels for both the sides. Perused pleadings and documents submitted by both the parties. The point for consideration is whether the present petition filed under the IBC is to be allowed or not. 7. It is an admitted fact that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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