V.K.Gupta, J. - (1.) This Appeal is directed against the judgment dated 2nd February, 1994 in Company Petition No.191 of 1983 of a learned Single Judge of this Court whereby the application filed under section 34 of the Arbitration Act 1940 by the Company-Respondent in this Appeal in a winding up petition filed under sections 433, 434 and 439 of the Companies Act was allowed and the learned Single Judge accordingly stayed the winding up proceedings in the winding up petition and permitted the petitioning creditor in the winding up application to take appropriate proceedings in Arbitration for recovery of its dues.
(2.) The Appellant M/s. Ram Kumar Radheshyam Kedia had filed a petition under sections 433, 434 and 439 of the Companies Act against the Respondent-Company M/s. Subrata Sasmal and Company Pvt. Ltd. for winding up of this Company alleging that one Tata Hitachi excavator, Model UM 0832LC Hydraulic Back HOE with 0.91 Cu.Mtr Back Hoe Bucket had been let on hire to the Company and the Company agreed to take on hire the aforesaid machine complete with all accessories on the terms and conditions mentioned in the winding up application, including those relating to the payment of an amount of Rs. 6,19,418.92 as initial payment by way of hire charges. An agreement is stated to have been executed on 1st February 1990 between the parties. It is the case of the Appellant that the Company paid Rs. 6,19,418.92p. At the time of execution of the aforesaid Agreement whereupon the possession of the machine/vehicle was made over by and on behalf of the Appellants to the Respondent-Company. It is also alleged that first two sixth monthly hires and/or instalments charges were paid by the Respondent Company, but thereafter the Respondent Company neglected to pay to the Appellant hire charges. Details of the payments and the non-payments have been given in the winding up application. The following reliefs were claimed by the Appellant in the winding up application: - "The said Company being M/s. Subrata Sasmal Co. Pvt. Ltd. be wound up by this Hon'ble Court under the provision of Companies Act, 1956; Cost of the incidental to this application be paid to your petitioner out of the assets of the said Company; Such further or other order or orders be made and/or directions be given as your Lordship may be deem fit and proper."
(3.) After the Respondent Company was served a Notice of the Winding up application from the Court, it filed its affidavit-in-Opposition to the winding up application through one Subrata Sasmal, claiming to be Director of the Respondent Company. Even though in this affidavit-in-Opposition a reference was made to the existence of Arbitration Agreement between the parties allegedly covering the subject matter of disputes between the parties, the affidavit-in-Opposition went on to deal with all material questions and facts raised in the winding up application and appropriately attempted to reply various averments contained in the same. This affidavit-in-Opposition was affirmed on 21st July 1993. This was followed later on by the Respondent-Company by filing an application under section 34 of the Arbitration Act. It was in this application that the Order under Appeal was passed by the learned Single Judge.;