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Arbitration & winding up

(Querist) 27 August 2012 This query is : Resolved 
Whether winding up petition can be initiated by a secured creditor against a debtor company after having availed some benifits u/s 9 of the arbitration act.Whether obtaining some orders under section 9 of the Arbitration act makes the debt a "disputed debt".
ajay sethi (Expert) 27 August 2012
if there is an arbitration clause in the contract all disputes have to be referred to arbitartion . section 9 provides an application cna be made for interim orders based on arbitartion clause .

if secured creditor has availed remedy under arbitration act it does not prevent moving company court for winding up
mere existence of an arbitration clause in an agreement by itself would not debar or oust the jurisdiction of the company court in proceedings for winding up nor would it make it incumbent upon the company court to stay the proceedings till the decision of the arbitrator.
ajay sethi (Expert) 27 August 2012
the judgment of the Division Bench reported in Maruti Ltd. v. B. G. Shirke and Co. P. Ltd. [1981] 51 Comp Cas 11 (P&H) has observed on page 14 that the arbitration clause does not even, after referring the disputes to an arbitrator, take away the jurisdiction of the company court, for winding up. It has been categorically laid down that 'what is presupposed by learned counsel is that the mere existence of an arbitration clause in the agreement would take away the jurisdiction of the company court to entertain or dispose of any suit or proceeding and any claim made by or against the company. But this approach is not legally tenable'.


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