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TMI Blog2014 (2) TMI 1317X X X X Extracts X X X X X X X X Extracts X X X X ..... es, 1959, for reference of the disputes to arbitration. Heard Sri N.V.Shravan Kumar, learned counsel for the applicant, and Sri Deepak Bhattacharjee, learned counsel for the respondent/ petitioner in C.P.No.180 of 2013. For convenience, the parties are referred as they are arrayed in the Company Petition. The respondent was incorporated on 24.11.1988. The petitioner has participated in a bid for installation of two Air Cooled Condensers (ACC) for sugar manufacturing unit of the respondent at Ambasamudram and emerged as the successful bidder. On 18.09.2008, a letter of intent was issued by the respondent to the petitioner for supply of two ACC units for a total price of Rs. 14,85,80,000/-. The first ACC unit was co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich, the respondent has issued legal notice, dated 05.09.2012, calling upon the petitioner either to rectify the defects or replace the ACC units; and that finally, in order to put the two ACC units in workable condition, the respondent has placed Purchase Order for an amount of Rs. 31,00,000/- on other suppliers at a higher cost and already incurred an expenditure of Rs. 18,00,000/- for replacing the fans. The respondent has further averred that in view of breach of contract by the petitioner, it has suffered loss and is entitled to claim costs and damages from the petitioner. The respondent denied the petitioner's claim by stating that the same is a disputed claim. It has referred to Clause 32 of the Purchase Order, dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nx Ltd. (CDJ 2012 APHC 365), in support of his submission that the present application is not maintainable. Sri N.V.Shravan Kumar, learned counsel for the respondent, however, placed reliance on the judgment of a learned single Judge of Punjab and Haryana High Court in Honeywell Automation India Ltd. v. DLF Universal Ltd. (2008) 152 PLR 616), to buttress his submission that an application made under Section 8 of the Arbitration Act is maintainable. Before adverting to the above-mentioned judgments cited by the learned counsel for the parties, it is apposite to refer to the provisions of Section 8 of the Arbitration Act, which read as under: "Power to refer parties to arbitration where there is an arbitration agreement - (1) A judicial a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction to decide such dispute. It is indubitable that under the scheme of the Companies Act, 1956, as it now stands, the only forum which is conferred with the jurisdiction to order winding up of a company is the High Court. Therefore, the Company Petition filed under Chapter-II of the Companies Act, 1956 for winding up of the Company has to be exclusively adjudicated by the High Court and no other forum has such jurisdiction. In Haryana Telecom Ltd (1 supra), an application similar to the present one was filed by a party in a pending Company Petition seeking reference of the dispute under Section 8 of the Arbitration Act to arbitration. While rejecting the said application, the Supreme Court held: Sub-section (1) of Section 8 provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the laws of the country. Every civil or commercial dispute, either contractual or non-contractual, which can be decided by a Court, is in principle capable of being adjudicated and resolved by arbitration unless the jurisdiction of the Arbitral Tribunals is excluded either expressly or by necessary implication. Adjudication of certain categories of proceedings are reserved by the legislature exclusively for public fora as a matter of public policy. Certain other categories of cases, though not expressly reserved for adjudication by public fora (Courts and tribunals), may by necessary implication stand excluded from the purview of private fora. Consequently, where the cause/dispute is inarbitrable, the Court where a suit is pending, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinue the winding up proceedings and deny the opportunity to the parties to settle their dispute through arbitration. The learned single Judge "under the facts and circumstances" referred the dispute to arbitration in view of Clause- 16 of arbitration agreement between the parties. Interestingly, the learned single Judge has referred to the judgment in Haryana Telecom Ltd (1 supra), but did not explain as to how an order allowing the application under Section 8 of the Arbitration Act could be justified in the face of the dicta laid down by the Supreme Court in the said case. It is one thing to dismiss the Company Petition on its own merits if the Court feels that there is a bona fide dispute, while it is quite another thing to refer the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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