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2023 (3) TMI 1482 - DELHI HIGH COURTAppointment of Ld. Sole Arbitrator for adjudication of the disputes and differences between the Petitioner and the respondent Nos. 1, 2, 3 and 4 - award of costs of this Petition as per Section 31(A) of the Act be paid by the respondents in favour of the petitioner - seeking deposit of (or security for) the amount due and outstanding i.e., Rs 1,34,00,00,000/- to the petitioner from the respondents - also restraint has been sought particularly against respondent No. 1 from making any further payments and/or transferring any assets to respondent No. 2, prior to making payments to the petitioner. Whether arbitration clauses are not applicable as the petitioner has a remedy available under the RDDBFI Act and the SARFAESI Act? - HELD THAT:- A perusal of Clause 33 of the Facility Agreement reveals that it is in the eventuality that the lender (petitioner herein) does not have the benefit of the RDDBFI and SARFESI Acts, then, the parties will have a right to refer any dispute arising out or in connection with the Facility Agreement, to the arbitration. The Supreme Court in M.D. FROZEN FOODS EXPORTS PVT. LTD. & ORS. VERSUS HERO FINCORP LTD. [2017 (9) TMI 1266 - SUPREME COURT] on which reliance has been placed by Mr. Rao has held, the remedy under SARFAESI Act is in addition and not in derogation to the RDDBFI Act, which is an alternative remedy available to the lender for recovery of money. The Supreme Court also held that the remedy for recovery of money and the remedy under the SARFAESI Act can proceed simultaneously. Hence this submission of Mr. Chidambaram is liable to be rejected. Whether all the parties including respondent Nos. 2 and 3 are required to be referred to arbitration when admittedly the respondent Nos. 2 and 3 are not the signatories to the CAL and Facility Agreement? - HELD THAT:- In MAHANAGAR TELEPHONE NIGAM LTD. VERSUS CANARA BANK & ORS. [2019 (8) TMI 576 - SUPREME COURT], the Supreme Court had applied the Doctrine of Group of Companies and held that the CANFINA (a non-signatory party therein) was undoubtedly a necessary and proper party in the arbitration proceedings. Whether respondent Nos. 2 and 3 can be referred to arbitration along with petitioner and respondent No. 1? - HELD THAT:- The plaintiffs suit was specifically for non-payment of those dues under the main agreement by the defendant No. 1 and also for non-payment of the dues by defendant No. 3 under the personal guarantee. Whereas, the case of the defendants was that the main agreement between plaintiff and defendant No. 1 for supply of goods contained the arbitration clause and thus main claim of the plaintiff arising out of that agreement is covered by the arbitration agreement, thus, the parties must be referred to arbitration under Section 8 of the Act of 1996. The Court after hearing the submissions of both the sides, negated the plea on behalf of the defendants by holding that the arbitration clause being entered into only between the creditor and the principal debtor and not with the guarantors, all the parties including the guarantors thus cannot be referred to arbitration. This Court appoints Justice L. Nageswara Rao, a Former Judge of Supreme Court of India (Mob. No. 9810035984), as the sole Arbitrator, who shall adjudicate the disputes between the parties, through claims and counter claims, if any. He shall give his disclosure under Section 12 of the Act of 1996. The learned Arbitrator can fix the fee to conduct arbitration proceedings in consultation with the counsel for the parties. Petition disposed off.
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