The main legal point established is that lack of consensus ad idem on the arbitration procedure can justify court appointment of an arbitrator, and previous adjudication does not necessarily bar arbitration.

JUDGMENT

Neena Bansal Krishna, J. The petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "A&C Act, 1996") has been filed on behalf of the petitioner seeking appointment of Arbitrators.

2. Facts in brief, are that the petitioner is a Private Company and is engaged in the business of selling and servicing of BMW vehicles. The respondent No. 1, Company is engaged in the business of manufacture and dealership of BMW vehicles. The respondent No. 2 is the sister concern of the respondent No. 1, Company and is engaged in the business of providing services ancillary to the sale of the vehicles by the respondent No. 1.

3. It is submitted that the respondent Nos. 1 and 2 are directly or indirectly wholly owned subsidiaries of Bayerische Motoren Werke (BMW) AG, having its registered Office at Bayerische Motoren Werke Aktiengesellschaft Petuelring 130D-80788, Munich, Germany.

4. The petitioner and the respondent No. 1 entered into two separate contracts, namely the Dealership Agreement for the sale of BMW vehicles in the State of Gujarat in 2007 and the Deferred Payment Facility Agreement (DPFA) dated 15th November, 2010. From time to time, new Agreements were executed or renewal letters were issued to continue the dealership. The last Dealership Agreement was entered into on 14th January, 2015 between the petitioner and the respondent No. 1 the Dealership Agreement dated 14th January, 2015 which last came to be renewed for the period of one year i.e., till 31st December, 2017, vide Letter dated 09th January, 2017. Both the Agreements contain an Arbitration Clause.

5. Similarly, the petitioner entered into two separate Agreements with respondent No. 2 namely, the Floor Plan Financing Agreement dated 15th November, 2010 (hereinafter referred to as "FFA") and the Working Capital Demand Credit Facility Agreement (WCDCFA) dated 28th June, 2014; each of these two Agreements also contained an Arbitration Clause.

6. It is asserted that various disputes have arisen between the petitioner and the respondents essentially in regard to respondent No. 1 permitting other dealers to sell BMW vehicles outside Gujarat thereby causing irreparable loss and injury to the petitioner. The respondent No. 1 has failed to give count of the vehicles sold outside Gujarat to Gujarat customers. The respondent No. 2 is allegedly claiming to have paid the purported outstanding dues of the petitioner towards respondent No. 1 pursuant to the DPFA which allowed the petitioner to make payments for the cars sold by respondent No. 1 in a deferred manner, the financial assistance of which was agreed to be provided by respondent No. 2.

7. The petitioner has stated that the respondent No. 2 has filed an Insolvency Petition bearing No. CP(IB) No. 161/2017 in and around November, 2017 against the petitioner before the National Company Law Tribunal, Ahmedabad (hereinafter referred to as "NCLT") which was admitted on 04th June, 2020 leading to the commencement of the Corporate Insolvency Resolution Process (hereinafter referred to as `CIRP')'.

8. Since the petitioner is a corporate debtor before the NCLT, it has to be considered whether a petition under Section 11(6) of the A & C Act, 1996 can be entertained when the Petitioner is under CIRP. The same was under consideration in the judgment of the Hon'ble Supreme Court in New Delhi Municipal Corporation Vs Minosha India Limited, Civil Appeal No. 3470 of 2022, dated 27th April 2022, where it was observed that the taboo to the institution and continuation of various proceedings as envisaged in Section 14 of the Insolvency and Bankruptcy Code, 2016 does not exclude a Petition filed by the Corporate Debtor for the appointment of an arbitrator under section 11(6) of the A & C Act, 1996. For that matter, no proceeding instituted by the Corporate Debtor through the Resolution Professional is barred by the moratorium. The same can be evinced from the language in section 14(1) of the In