10F Appeal and Arbitration

The High Court has no jurisdiction under Section 10F of the Companies Act against the orders of the CLB allowing applications for referring the  matter to arbitration.  
Vijay Sekhri v. Tinna Oil & Chemicals,    2011 100  CLA Del 344


(SUBJECT TO DISCUSSION)


SEE ALSO : SUMITOMO 2008 4 SCC 91

Section 543 of the Companies Act - preference

Under S 543 of the Companies Act only a member or a creditor could make an application, not the Government (SFIO).
While SFIO can approach the board under Section 401, but it has to show ingredients necessary for 397/398.


Pradeep Vakil v. Union of India, [2011] 161 Comp Cas 231 (CLB - Mum)

Arbitration and 397/398 Company Law Board

20th Century Finance Corporation Ltd v. Union of India, [2011] 161 Comp Cas 247 (Delhi)

"The grievance of the appellant was that the respondent had not adhered to the clauses of the sponsorship agreement. The right to get the memorandum and the articles of association amended had accrued to the appellant and the pre-requisite for the appellant was to fulfill all the obligations imposed on it by the sponsorship agreemnt as it was disputed by the respondents for the amendment of the mem/arts.... It flowed from the contractual obligations contained in the sponsorship agreement and had to be necessarily determined through means of arbitration as contained in the article 8(2) of the sponsorship agreement. "

arbitration, termination of the proceedings

Arbitrator of his own cannot extend time, and the proceedings get terminated automatically. BK Gopakumar v. NFDCL, 2011(1) BOMCR 12

Arbitration Agreement

mere use  of the word "arbitration" in a clause does not make it as arbitration agreement. Discovery Properties & Hotels Pvt Ltd v. CIDCO, 2011(1) BOMCR 343

foreign judgment

Section 13(b) Foreign judgment passed by the UK High Court under its summary procedure after considering evidence available on record would be decision on merits. It would be conclusive hence enforceable in India. AIR 2011 P&H 69 (NOC)

Also  simultaneous execution petition in India and Foreign Court not barred, especially when the decree holder has started that nothing has been recovered from execution filed in other court.


costs imposed by foreign court is a decree, can be executed under section 44-A of CPC.

winding-up and alternative remedy

"when the petitioner invokes a just and equitable ground ... the petitioner must convince the court not only of just and equitable ground for ordering winding-up, but also that there is no alternative remedy open to the petitioner. Apart from that the petitioner is bound to substantiate the conditions of insolvency existing to persuade the court to exercise the equitable jurisdiction. If the details of the insolvency are wanting and no supportive documents are produced, then the petitioner could not be said to have proved prima facie the status of the respondent company's insolvency. The creditor has to show the prima facie evidence that the (a) existing assets and the probable assets are insufficient to meet the existing liabilities; (b) the company is heavily indebted to various debtors; and that there is no possibility of the respondent company's making profit or the business being carried on....."

"the jurisdiction of the company court is summary jurisdiction and unless there is material before the company court to show that the company has reached the stage of commercial insolvency, the court will not order a winding up."

Hence, unless the petitioner made a definite case as to the commercial insolvency of the respondent, the mere fact that there was corporate guarantee would not entitle the petitioner to go for this relief."

[2011] 105 SCL  274 (Mad) - Dallah Abrarka v. Pentasoft Technologies Ltd