# in the matter of Achenbach Buschhutten CmbH & Co. Vs Arcotech Ltd. CA (AT) No. 97-2017

> NCLAT judgment dated 2017-07-31. Citation: TCN-2017-NCLAT-00150. The appeal was filed by Achenbach Buschhutten GmbH & Co. against an order dated May 25, 2017,…

- **Court:** NCLAT
- **Order date:** 31 Jul 2017
- **Citation:** TCN-2017-NCLAT-00150
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclat-new-delhi/achenbach-buschhutten-cmbh-co-vs-arcotech-ltd-ca-3e2c3a30

## Summary

### Background

The appeal was filed by Achenbach Buschhutten GmbH & Co. against an order dated May 25, 2017, passed by the National Company Law Tribunal (NCLT), Chandigarh Bench, in CP(IB) No. 21/Chd/Hry/2017. The appellant, claiming to be an operational creditor, had filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (I&B Code) to initiate Corporate Insolvency Resolution Process against Arcotech Ltd. The NCLT had not entertained the application, referring to a clause of arbitration and the existence of a dispute.

## Facts

Achenbach Buschhutten GmbH & Co., a company incorporated under the laws of Germany, claimed to be an operational creditor of Arcotech Ltd. and filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016, to initiate Corporate Insolvency Resolution Process against Arcotech Ltd. The Adjudicating Authority (National Company Law Tribunal), Chandigarh Bench, did not entertain the application, citing the existence of an arbitration clause. The appellant did not enclose a certificate from a 'Financial Institution' confirming that there was no payment of unpaid operational debt by the Corporate Debtor, as required under Section 9(3)(c) of the I&B Code. The appellant enclosed a letter relating to 'confirmation of receipt of payment' from a foreign

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## Issues and analysis

### Issue 1: Whether the Learned Adjudicating Authority was correct in not entertaining the application on the …

**Ratio:** A mere clause of arbitration in an agreement cannot be termed to be an "existence of

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**Reasoning:** The court reasoned that the existence of an arbitration clause alone does not constitute

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**Interpretation:** The interpretation focuses on the distinction between the presence of an

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**Application:** In this case, the Adjudicating Authority's reliance on the arbitration clause

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## Parties

- **Judges:** S.J. Mukhop…; Balvinder…
- **Appellants:** Achenbach…
- **Respondents:** Arcotech L…; Arcotech…

## Timeline

- **2017-05-25 — Order by Adjudicating…**: The National Company Law Tribunal (NCLT), Chandigarh Bench, passed an order in CP(IB) No.…
- **2017-07-17 — Macquarie Bank Limited Vs. Uttam Galva…**: The Appellate Tribunal decided 'Macquarie Bank Limited Vs. Uttam Galva Metallics Limited'…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 9 — Application for initiation of corporate insolvency…](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-9)

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