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TMI Blog2018 (7) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent is said to have approached the petitioner at its Copenhagen Branch to avail a credit facility to finance 85% of the export value. On 20, 24, and 26 November 2008 the respondent company executed a Tripartite agreement with the petitioner company and one VA Tech Finance (Ireland) Ltd. Thereupon the petitioner company agreed to finance 85% of the contract value of the equipment amounting to Rs. 3,400,000 Euros. The financial facility was to be repaid in 10 equal consecutive semi-annual instalments. On 19.12.2008 after delivery of equipments the respondent executed a Deed of Hypothecation in favour of the petitioner. Mr. H.P. CHawla, the Director of the respondent company also executed a Deed of Personal Guarantee dated 8.1.2009 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the petition. He has in addition relied upon on the balance sheet of the respondent company as on 31.3.2015 where it is admitted that a sum of Rs. 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 Rs. 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o that effect in the reply the petitioner was not able to explain as to whether any payment has been received from the insurance company or not. That apart, in my opinion, these are facts which should be well within the knowledge of the respondent. The respondent cannot come up with these pleas at the time of arguments without even having pleaded for the same. 8. Reference in this context may also be had to the judgment of the Gujarat High Court in PVD Plast Mould Industries Ltd. vs. ING BHF Bank Aktiengesellschaft, (2008) 144 CompCas 495 (Guj) where the court has held as follows:- 6.....The petitioner cannot say that once the Insurance Company has paid the money to the principal creditor, then the appellant company is not answerable to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 arbitration, and those which are not, is brought out in three decisions of this Court. In Haryana Telecom Limited v. Sterlite Industries India Ltd. MANU/SC/0401/1999 : 1999 (5) SCC 688, this Court held: 4. Sub-section (1) of Section 8 provides that the judicial authority before whom an action is brought in a matter, will refer the parties to arbitration the said matter in accordance with the arbitration agreement. This, however, postulates, in our opinion, that what can be refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt has relied upon judgment of the Supreme Court in Booz Allen and Hamilton INC vs. SBI Home Finance Limited and Others (supra). The court took the stand that disputes which relate to right in personam are arbitrable and choice is given to the parties to choose the alternate forum. However, those relating to rights in rem are not arbitrable and the parties' choice to chose forum of arbitration 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his amount, is a vague plea, which cannot be permitted to be raised whatsoever. The respondent has not been able to point out as to under which applicable law of Sweden, the claims of the petitioner are not maintainable. In my opinion, there is no merit in the contention raised by the petitioner. The plea lacks bona fide and cannot be accepted. 15. Accordingly, 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 lea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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