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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 ..... 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 parties to arbitration on an application made under Section 8 of the Arbitration Act, merely because the debt is disputed. In the face of the authoritative pronouncements of the Ape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,80,000/-. The first ACC unit was commissioned in April, 2010 and the second ACC unit was commissioned in June, 2010. The petitioner attributed the delay in commissioning the ACC units to various departments of the respondent- company. By 31.03.2010, the respondent has paid ₹ 12,32,87,146/- to the petitioner as against the bill amount of ₹ 16,24,95,783.05 ps. On 05.11.2012, the respondent filed an application for its demerging, in which the petitioner has filed an impleadment application. On 14.06.2013, the petitioner issued a statutory notice for winding up of the respondent- company for non-payment of ₹ 3,92,08,637.05 ps with interest at the rate of 18% per annum from 01.04.2013 till the date of payment. Subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchase Order, dated 20.11.2008 and Clause-1.26 of the Work Order, dated 20.11.2008, and pleaded that as the parties agreed for reference of all the disputes or differences, whatsoever, arising between them, for arbitration, the petitioner is not entitled to file the Company Petition. Accordingly, it has invoked the provisions of Section 8 of the Arbitration Act for reference of the disputes to arbitration. The petitioner filed a counter-affidavit, wherein it has raised a preliminary objection to the maintainability of the application. The petitioner averred that Section 8 of the Arbitration Act does not take away the jurisdiction of this Court for winding up as, this is the only forum having exclusive jurisdiction to decide whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made. The Arbitration Act has been conceived with a view to facilitate parties to an agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of Section 8 provides that the judicial authority before whom an action is brought in a matter, will refer the parties to arbitration the said matter in accordance with the arbitration agreement. This, however, postulates, in our opinion, that what can be referred to the arbitrator is only that dispute or matter which the arbitrator is competent or empowered to decide. The claim in a petition for winding up is not for money. The petition filed under the Companies Act would be to the effect, in a matter like this, that the company has become commercially insolvent and, therefore, should be wound up. The power to order winding up of a company is contained under the Companies Act and is conferred on the Court. An arbitrator, notwi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s pending, will refuse to refer the parties to arbitration, under Section 8 of the Act, even if the parties might have agreed upon arbitration as the forum for settlement of such disputes. The well-recognized examples of non-arbitrable disputes are: (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters, (iv) insolvency and winding up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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