Permod Kohli, J. - (1.) M /s Honeywell Automation India Limited, Company incorporated under the Companies Act, 1956 filed Company Petition No. 66 of 2006 under Section 433(e) and (f) read with Section 439(1)(b) and 434(1)(a) of the Companies Act seeking winding up of the respondent -Company known as M/s DLF Universal Ltd. on the grounds that the respondent -company Was failed and neglected the payment of the dues against it. It is further alleged that respondent -company is not in a position to make its financial commitment and thus unable to pay the debts. It is also stated that respondent -company appears to be in an insolvent condition and its substratum appears to have been lost. According to the -petitioner, the respondent -company is unable to pay the amount of Rs. 32,56,514/ - as the principal amount with interest @ 20% per annum total Rs. 60,24,550/ - as on 31.3.2006. A statutory demand under Section 434 was also made and therefore, the present petition has been filed. An ancillary application seeking appointment of Official Liquidator has also been preferred.
(2.) A notice to show cause as to why petition be not admitted was issued on 4.5.2006. On being served, the respondent -company has appeared and after seeking certain opportunities for filing the reply, an application under Section 8 of the Arbitration and Conciliation Act for referring the matter to the Arbitrator was filed on 5.4.2007. Simultaneously, reply to the main petition No. 66 of 2007 was also filed on the same date. The petitioner in the main petition filed its reply to the application under Section 8 and rejoinder thereto also stands filed. Through the medium of this application under Section 8 of the Arbitration and Conciliation Act, 1996, a prayer is made for reference of the parties to the arbitration and for dismissal of the Company Petition No. 66 of 2006. The premises on which the reference to the arbitration is sought is the existence of an arbitration agreement between the parties. It is stated that the petitioner in the main petition approached the DLF Indus tries Ltd. for supplying a product called as AM -NT to its client Mangalore Refinery and Petrochemical Ltd. (MRPL). DLF Industries Ltd. had placed two purchase orders being dated 24.11.1997 and 28.7.1998 for supply of certain additional items for switching over to AM -NT instead of AM of DCS system already supplied by the petitioner. It is alleged that against the aforesaid purchase orders DLF Industries Ltd. and its client MRPL made the payment to the petitioner and nothing remained outstanding and accordingly the allegations made in the petition for winding up have been denied. Copies of these purchase orders are placed on record. It is alleged that the purchase orders contain arbitration Clause being Clause 16 and thus disputes between the parties are required to be referred to the Arbitral Tribunal in accordance with the aforesaid purchase orders (arbitration agreement). Clause 16 of the purchase orders reads as under: All disputes arising in connection with this agreement which cannot be settled by mutual negotiations shall be finally settled under the rules of Indian Arbitration Act, 1940 and as amended from time to time. The venue of the arbitration shall be New Delhi.
(3.) THE applicant has further stated that the petitioner in the main petition has relied upon forged and fabricated documents to show alleged admission of liability on the party of the applicant (respondent). The question of validity of these forged documents can only be decided by means of evidence in arbitration proceedings.;