Mr. Justice Avinash G. Gharote

Whether the provisions of the IBC, 2016 interdict the appointment of an Arbitrator by invoking Section 11(6) of the Arbitration and Conciliation Act, 1996 – M/s. Sunflag Iron & Steel Co. Ltd. Vs. M/s. J. Poonamchand & Sons – Bombay High Court

Hon’ble High Court held that (i) The admission of an application after recording its satisfaction as contemplated by Section 7(5) of the IB Code would be the starting point where the bar under Section 238 of the IB Code can be said to be capable of being invoked and the mere filing of an application under Section 7(1) of the IB Code cannot be said to be enough to invoke the bar. (ii) The mere filing of an application under Section 7(1) of the IB Code, would not act as a bar to any proceedings under other statutes, until and unless the satisfaction as contemplated by Section 7(4) r/w Section 7(5)(a) of the IB Code is recorded by the Adjudicating Authority and the application is admitted. (iii) There does not appear to be anything inconsistent between the provisions of the A & C Act and the IB Code, inasmuch as the provisions of Section 238 of the IB Code would come into play only upon an order having been passed by the Adjudicating Authority under Section 7(5) of the IB Code and therefore an application under Section 11(6) of the A & C Act, till such time cannot be said to be not maintainable.

Whether the provisions of the IBC, 2016 interdict the appointment of an Arbitrator by invoking Section 11(6) of the Arbitration and Conciliation Act, 1996 – M/s. Sunflag Iron & Steel Co. Ltd. Vs. M/s. J. Poonamchand & Sons – Bombay High Court Read Post »

As per Section 12(5) r/w 14(1)A of the Arbitration and Conciliation Act, 1996, where an Arbitrator becomes de jure unable to perform his function on account of being ineligible to be appointed as an arbitrator, his mandate automatically terminates and he shall then be substituted by another arbitrator and there is no challenge procedure for this – Mech Components Pvt. Ltd. Vs. The General Manager, Ordnance Factory Chanda – Bombay High Court

Hon’ble High Court held that in Perkins Eastman Architects DPC and another vs HSCC (India) Limited (2019) ibclaw.in 206 SC while considering both the categories the one dealt with in TRF Ltd. Vs. Energo Engineering Projects Ltd. (2017) ibclaw.in 269 SC, where the Managing Director himself was named as arbitrator with an additional power to appoint any other person as an arbitrator and the second category where the Managing Director was not to act as an arbitrator himself but is empowered or authorized to appoint any other person of his choice or discretion as an arbitrator, it has been held, that if in the first category, if the Managing Director was found incompetent, it was because of the interest that he would be said to be having in the outcome or result of the dispute. The element of invalidity would thus be directly relatable to and arise from the interest that he would be having in such outcome or decision. If that be the test similar invalidity would always arise and spring even in the second category of cases. If the interest that he has in the outcome of the dispute, is taken to be the basis for the possibility of bias, it will always be present irrespective or whether the matter stands under the first or second category of cases.

As per Section 12(5) r/w 14(1)A of the Arbitration and Conciliation Act, 1996, where an Arbitrator becomes de jure unable to perform his function on account of being ineligible to be appointed as an arbitrator, his mandate automatically terminates and he shall then be substituted by another arbitrator and there is no challenge procedure for this – Mech Components Pvt. Ltd. Vs. The General Manager, Ordnance Factory Chanda – Bombay High Court Read Post »

Whether the jurisdiction of a Civil Court to decide all the matters of civil nature, excluding those to be tried by the Debts Recovery Tribunal under Section 17 of the Securitisation Act, in relation to enforcement of security interest of a secured creditor, is barred by Section 34 of the Securitisation Act? – Bank of Baroda Vs. Gopal Shriram Panda – Bombay High Court

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Whether the jurisdiction of a Civil Court to decide all the matters of civil nature, excluding those to be tried by the Debts Recovery Tribunal under Section 17 of the Securitisation Act, in relation to enforcement of security interest of a secured creditor, is barred by Section 34 of the Securitisation Act? – Bank of Baroda Vs. Gopal Shriram Panda – Bombay High Court Read Post »

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