DR.MUKUNDAKAM SHARMA, J. - (1.) I have heard the learned counsel appearing for the parties. Three preliminary objections have been raised in this petition by the respondent. The first objection is with regard to maintainability of the petition on the ground that no affidavit has been filed by the petitioner in accordance with Form 21 as prescribed under the Companies Act. I have heard the learned counsel appearing for the parties on the said issue. Upon going through the records, I find that after the aforesaid objection was raised by the respondent, the petitioner has filed an application in this Court enclosing therewith an affidavit, which is in Form 21 and by filing the said application the petitioner seeks for an order to take the said affidavit on record. I see no reason to deny the said liberty to the petitioner as was done by the Supreme Court in the case of MALHOTRA STEEL SYNDICATE VS. PUNJAB CHEMI-PLANTS LIMITED reported in 1993 Supp (3) SCC 565 wherein in a case of winding up of the respondent company the Supreme Court has held that even if there be some slight defect or irregularity in the filing of the affidavit, an opportunity should be afforded to the applicant to rectify the affidavit. In accordance with the aforesaid ratio of the decision of the Supreme Court, I allow the petitioner to rectify the defect and take the additional affidavit filed by the petitioner, which is in compliance of Form-21 of the Companies Act, on record. The first objection raised by the respondent is , therefore, accordingly dealt with.
(2.) The second objection, which is raised by the respondent is with regard to maintainability of this petition. It is submitted that since the contract between the parties envisages and stipulates that in case of dispute the said dispute shall have to be referred to and adjudicated upon through the process of arbitration therefore, this petition is not maintainable. The aforesaid objection on the face of it is required to be rejected in view of the settled position of law by the Supreme Court in HARYANA TELECOM LIMITED vs STERLITE INDUSTRIES (INDIA) LIMITED reported in (1999) 5 SCC 688 wherein it was held by the Supreme Court that an arbitrator, notwithstanding any agreement between the parties, would have no jurisdiction to order winding up of a company since such power is conferred on a Court by the Companies Act. It was also held by the Supreme Court that the winding up matter cannot be referred to the arbitrator. Accordingly, it is held that this petition filed by the petitioner is maintainable even in spite of the arbitration clause between the parties.
(3.) The next preliminary objection that is raised by the respondent is with regard to maintainability of the petition for want of an appropriate and valid notice under Section 434 of the Companies Act. It is submitted by the counsel appearing for the respondent that the statutory notice issued by the petitioner to the respondent did not give the respondent 21 days time as required and as provided for under the said Section. It is also submitted that the description of the leased equipment , as given in the statutory notice, is different than the one which is given in the petition. I have considered the said submission and the objection raised by the respondent. Admittedly, the present petition was filed in this Court after expiry of 21 days time from the date of issuance and receipt of the statutory notice. In DEVENDRA KUMAR JAIN vs POLAR FORGINGS & TOOLS LIMITED reported in (1995) 84 Company Cases 766 it was held by this Court that neither Act nor the Company (Court) Rules provide for any particular form of demand and that non-specification of the period of three weeks would not invalidate the demand. In coming to the aforesaid conclusions this Court relied upon and referred to, with approval, the decision in BABU RAM vs KRISHNA BHARDWAJ COLD STORAGE reported in (1965) 2 Company Law Journal 215 (All). In that decision notice issued mentioned a shorter period for payment, which was held to be not fatal. So far description of the leased equipments is concerned a copy of the leased agreement is placed on record. The said lease agreement gives proper description of the leased equipments, which is also mentioned in the present petition. Therefore, the mistake in the statutory notice to that effect cannot be said to be fatal to the present petition. Another objection which is raised is that the notice is a composite notice and not specifically for winding up. In my considered opinion, there is no bar in filing a winding up petition on the basis of a composite notice. In MOHANVI CORPORATION P.LTD. VS. LIC reported in (1972) 42 Company Cases 393, this Court has held that a composite notice would not preclude the landlord from filing a winding up petition.;