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Shaunak Choudhury

The full chapter may be found by clicking on the PDF link to the left.

In recent judgments of the Supreme Court and High Courts, the position about the conflict between the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (RDDBA) and Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), and the Arbitration and Conciliation Act, 1996, (ACA) has led to inconsistent and convoluted interpretations concerning arbitration in debt recovery matters. The opinion of the Apex Court had been that arbitration proceedings would not bar the financial institution from a proceeding under SARFAESI, but now, such matters have been declared non-arbitrable. All matters covered under the RDDBA have been deemed to be non-arbitrable as well. This may lead to further trepidations with regards to the fidelity and value of the arbitration clause or agreement, alongside the recoverability of certain categories of debts. This paper investigates the relationship between the RDDBA, SARFAESI, and the ACA, interpretation of the said law with respect to the doctrine of election and arbitrability, consequences of said interpretations, and provides suggestions accordingly.

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