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TMI Blog2024 (12) TMI 1445X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014, whereunder Clause 16(B) provides an arbitration agreement between the parties for resolution of dispute through Arbitrator, if the dispute has not been resolved amicably. 2. Heard learned counsel for both parties and perused the record. 3. The arbitration application has been resisted by the nonapplicant- Company, though the execution of the purchase agreement dated 28.07.2014 and the existence of arbitration agreement between the parties, contained in Clause 16(B) of the purchase agreement have not been disputed. For ready reference, Clause 16(B) of the purchase agreement dated 28.07.2014, containing arbitration agreement between parties, is being extracted hereunder:- Clause 16 (B):- Any dispute which is not resolved amicably ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led on 20th January, 2022, seeking appointment of a sole Arbitrator for resolution of such dispute. 5. The resistance for appointment of an Arbitrator in respect of the claim put forth by applicant-Company, has been made fundamentally in view of certain subsequent events, transpired after filing of the instant arbitration application. It has been pointed out by the learned counsel for nonapplicant that one financial creditor namely M/s Kedia Financial Services Pvt. Ltd. had initiated proceedings of Corporate Insolvency Resolution Process (CIRP) under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter for short "IBC, 2016"), before the National Company Law Tribunal, Jaipur, which was admitted on 28.04.2022 and period of mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . now the Corporate Debtors, has strenuously relied upon the provision of Section 31(1) of the IBC, 2016, to contend that after approval of the CIRP proceedings by the NCLT, Jaipur vide judgment dated 31st March, 2023, the claim put forth by the applicant-Company against the non-applicant Company and sought to be referred for resolution before the Arbitrator, has virtually been extinguished. In support of such contention, reliance has been placed on a judgment of the Hon'ble Supreme Court in case of Ghanashyam Mishra & Sons (P) Ltd. Vs. Edelweiss Asset Reconstruction Co. Ltd. [(2021) 9 SCC 657]. 9. Thus, the contention of learned counsel for non-applicant- Company is that since the claim of applicant-Company has been extinguished and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment, decree or order of any Court, confine to the examination of the existence of an arbitration agreement." 12. A seven judges' Bench of the Hon'ble Supreme Court in recent judgment dated 13th December 2023, delivered In Re: Interplay Between Arbitration Agreements Under The Arbitration and Conciliation Act 1996 And the Indian Stamp Act, 1989 [AIR 2024 SC 1], has observed in Para Nos.152 & 154 that the omission of Section 11(6A), through Arbitration and Conciliation (Amendment) Act, 2019 (Act 33 of the 2019), has not been notified in the official gazette and therefore, the said provision continues to remain in full force. In this judgment, placing reliance on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 023 and the claim does not survive at all, this Court is of considered opinion that such contention touches to merits of the claim, which can be considered and examined by the Arbitrator. This Court being a referral Court, in exercise of its jurisdiction under Section 11 of the A&C Act, 1996, would refrain to enter into merits/ demerits of the claim. Nevertheless, prima facie, it may be observed that the CIRP plan has been approved during the pendency of this arbitration application, which had been filed much prior thereto i.e. on 20.01.2022. Thus, on the date of filing of the arbitration application, the claim of applicant put forth qua the non-applicant-company was obviously survived. The effect of approval of CIRP against non-applicant C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Arbitration and Conciliation Act, 1996. 19. The appointment of the Sole Arbitrator is subject to the declaration being made under Section 12 of the Arbitration & Conciliation Act, 1996 with respect to independence and impartiality, and the ability to devote sufficient time to complete the arbitration within the prescribed period. 20. The arbitration fee of the Sole Arbitrator shall be payable in accordance with the provisions contained in the Manual of Procedure for Alternative Dispute Resolution, 2009 as amended by the Manual of Procedure for Alternative Dispute Resolution (Amendment), 2017 vide notification dated 23.03.2017 read with 4th Schedule appended to the Act of 1996 or as determined by the Arbitrator with consensus of parties. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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