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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 ..... Act 1996 And the Indian Stamp Act, 1989 [ 2023 (12) TMI 897 - SUPREME COURT (LB) ], 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. It is hereby observed that undeniably the dispute between the parties has not been resolved amicably and the arbitration clause contained in Clause 16(B) of the purchase agreement comes in play. Before filing the arbitration application, the applicant had issued legal notices dated 08.12.2021 and 12.01.2022, of which though, reply of one notice dated 12.01.2022 has been filed by the non-applicant Company on 03.09.2022, but admittedly the Arbitrator has not been appointed. Time limitation - HELD THAT:- The arbitration application is well within limitation. Conclusion - The existence of an arbitration agreement between the parties is confirmed and a sole arbitrator is appoined. The arbitration application is well within limitation. The Arbitration Application stands disposed of accordingly. - HON'BLE MR. JUSTICE SUDESH BANSAL For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest from the non-applicant-Company. It is the case of applicant-Company that since such dispute of claiming refund/ repayment could not be resolved amicably, despite serving legal notices dated 08.12.2021 and 12.01.2022, the instant arbitration application has to be filed 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 moratorium commenced. It has been pointed out that in such CIRP proceedings, Resolution Professional was appointed, who invited claims against the Corporate Debtor company i.e. non-appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant-Company failed to avail. Hence, his submission is that the instant arbitration application deserves to be dismissed. A copy of judgment dated 31st March, 2023 passed by the NCLT, Jaipur, has been placed on record. 10. Having considered the contentions made by the learned counsel appearing on behalf of the non-applicant-Company and from perusal of record, this Court finds that as far as execution of purchase agreement dated 28.07.2014, whereunder the copper was agreed to be supplied by non-applicant-Company to the applicant-company and supply of copper in pursuance thereof, is an undisputed fact. The arbitration agreement, contained in such purchase agreement in Clause 16(B), extracted hereinabove, is also not in dispute. 11. The scope of arbitration application, in view of Section 11(6A) of the A C Act, 1996 is confined and limited to the extent of examining the existence of arbitration agreement between the parties for resolution of dispute. For ready reference, Clause 11(6A) of the A C Act, is being extracted as under:- (6A) The Supreme Court or, as the case may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 Company- Corporate debtor by the NCLT, on the claim of applicant-Company, can be seen and decided by the arbitration tribunal, taking into consideration the provision of Sections 31(1) and 32-A of the IBC, 2016 and in the light of judgment of the Apex Court in case of Ghanashyam Mishra Sons (P) Ltd. (Supra). 15. It is hereby observed that undeniably the dispute between the parties has not been resolved amicably and the arbitration clause contained in Clause 16(B) of the purchase agreement comes in play. Before filing the arbitration application, the applicant had issued legal notices dated 08.12.2021 and 12.01.2022, of which though, reply of one ..... X X X X Extracts X X X X X X X X Extracts X X X X
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