R. Shankar Vs. T R Ravichandran and Anr. – Supreme Court
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In the present case the notice invoking arbitration clause was issued on 26.12.2013, i.e., much prior to the Amendment Act, 2015 and the application under Section 11(6) of the Act has been preferred/filed on 27.04.2016, i.e., much after the amendment Act came into force. The short question is in a case where the notice invoking arbitration is issued prior to the Amendment Act, 2015, the old Act shall be applicable (pre-amendment 2015) or the new Act?
Hon’ble Supreme Court held that (i) as per section 21 of the principal Act the arbitral proceedings can be said to have commenced on the date on which a request for the dispute to be referred to the arbitration is received by the respondent.
(ii) any observations made by Supreme Court in paragraphs 24 to 25 in the case of BCCI shall be understood and construed with respect to court proceedings which have commenced on or after the Amendment Act coming into force, namely, the proceedings under Sections 34 & 36.
(iii) The decisions of this Court in the cases of Parmar Constructions Company and Pardeep Vinod Construction Company cannot be said to be per incuriam and/or in conflict with the decision of this Court in the case of BCCI.
(iv) Applying the law laid down in the cases of Parmar Constructions Company and Pardeep Vinod Construction Company and S.P. Singla Constructions Pvt. Ltd. to the facts of the case on hand the law prevailing prior to the Amendment Act, 2015 shall be applicable.
Hon’ble Supreme Court held that in view of the availability of the alternative statutory remedy available by way of proceedings/appeal under Section 17 of the SARFAESI Act, the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India in which the e-¬auction notice was under challenge. Therefore, the High Court has committed a very serious error in entertaining the writ petition under Article 226 of the Constitution of India challenging the e-¬auction notice issued by the Bank in exercise of power under Section 13(4) of the SARFAESI Act. The aforesaid facts were pointed out before the High Court and despite the same the High Court has allowed the writ petition which is not sustainable at all.
The Hon’ble Apex Court also held that even otherwise it is very debatable whether Section 13(8) of the SARFAESI Act shall be applicable in favour of a person who is only an agreement to sale holder or Section 13(8) of the SARFAESI Act shall be applicable only in case of the borrower who is ready and willing to pay the entire debt. In the present case the borrower failed to get any relief from the DRT. The borrower did not apply and/or invoke Section 13(8) and did not agree to clear the entire dues. Therefore, also the High Court has materially erred in allowing the writ petition.
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In this case, Operational Creditor raised 187 different invoices for the Digital Classroom Solution Services provided for the period between 12.03.2011 and 30.06.2017. The amount under different invoices were unpaid, which gave rise to the appellant to initiate the proceedings under Section 9 of the IBC before the NCLT. The NCLT considering the starting point of limitation as 12.03.2011 held that the claim is barred by limitation. NCLAT dismissed appeal.
Hon’ble Supreme Court held that NCLT did not take into consideration the subsequent invoices at least preceding three years from the date of filing of Section 9 application, which ought to have been considered. Under the circumstances, the NCLT ought to have considered the invoices at least for the period preceding three years from the date of the application under Section 9, rather than considering the starting point of limitation as 12.03.2011.
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