TMI Blog2021 (6) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... e issuance of Debit Note, hence, a dispute had come into existence by admitting the fact that valid invoice was existing between the parties. Subsequently, after the exchange of emails the parties have met multiple times to settle the dispute between them with respect to the invoice amount and supply involved. At this stage we are not going into the merits of existence of per-existing dispute as defined in I B Code, 2016 but to test whether the dispute if any needs to be sent to arbitration as per section 8 of Arbitration and Conciliation Act (as amended). Since the disputes are purely contractual in nature, the invocation of arbitration is justified. Once the parties are sent to arbitration, nothing survives in the insolvency applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation before this Tribunal. 3. It is submitted that the Corporate Debtor is invoking the Arbitration Clause contained in the Invoices as per terms and conditions mentioned under Section 8(1) of Arbitration and Conciliation Act, 1996. The matter is subject to the arbitration agreement, as the invoices contain arbitration clause, which states as follows: 'In case of any dispute regarding this bill same shall be referred to the Arbitration of Delhi Hindustani Mercantile Association, Chandani Chowk, Delhi and the award of sole arbitration shall be final and binding on the parties' Henceforth, as specified by the Arbitration clause 'any dispute' regarding the invoice should be referred to Arbitral Tribunal. 4. The cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and settlement by arbitration? (b) Whether the disputes are covered by the arbitration agreement? (c) Whether the parties have referred the disputes to arbitration? . A dispute, even if it is capable of being decided by arbitration and falling within the scope of arbitration agreement, will not be 'arbitrable' if it is not enumerated in the joint list of disputes referred to arbitration, or in the absence of such joint list of disputes, does not form part of the disputes raised in the pleadings before the arbitral tribunal. Therefore, in the present matter the subject matter of the suit is 'arbitrable' in nature, asit comes within the ambit of 'right in personam' and the dispute is also well within the ambit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Engineering Ente 1 prises vs Principal Secretary, Irrigation Department others' where in it was held that the Arbitration Conciliation Act is a special law, consolidating and amending the law relating to arbitration and matters connected there with or incidental there to. The Hon'ble Supreme Court in the matter of 'P. Anand Gajapathi Raju Ors. v. P.VG. Raju (Died) Ors', while iterating the periphery of Section 8 of the Arbitration and Conciliation Act, 1996, has said as follow: 'The conditions which are required to be satisfied under Subsections (1) and (2) of Section 8 before the Court can exercise its powers are (1) there is an arbitration agreement; (2) a party to the agreement brings an action in the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute as defined in I B Code, 2016 but to test whether the dispute if any needs to be sent to arbitration as per section 8 of Arbitration and Conciliation Act (as amended). 9. Further, as per the Arbitration and Conciliation (Amendment) Act, 2015, where an arbitration clause exists, the court has a duty to refer dispute arising between the contracting parties to arbitration. Section 8 reads as under: (i) for sub-section (1), the following sub-section shall be substituted, namely:- (1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
