PRAKASH MAL JAIN Vs. NIHON NIRMAN LTD

JUDGEMENT

(1.) This company petition has been filed under Section 439(1)(b) of the Companies Act, 1956 (hereinafter to be called the Act') with the prayer that the respondent Company may be wound up under the provisions of the Act. On July 22, 1991, the respondent moved an application under Section 34, Arbitration Act stating that there is an arbitration clause in the agreement (Annexure R-1) executed in between the parties for the construction of the administrative building of the white Cement Plant at Gotan )(Nagaur) and praying that the further proceedings in the case be stayed. In his reply, the petitioner admits the execution of the said agreement and denies the remaining averments of the application. It has further been averred in the reply that the provisions of Section 34, Arbitration Act are not applicable, the arbitration clause is also not attracted in this case as the dispite referred to in this arbitration clause and the dispute referred to in the Company petition are totally different and step in these proceedings have been taken by the respondent, It is rejoinder, the respondent Company has averred that just appearance of Mr. Ajay Mathur before the Court without any authority of the Company cannot be taken' as participation in the proceedings, it is clear from the Company petition itself that it has been filed by the petitioner for the recovery of the amount and it is not maintainable. The remaining everments of the reply have been denied. In the arguments the learned counsel for the petitioner and the learned counsel for the respondent have reiterated the averments made in their reply to the application, application and the rejoinder respectively. The learned counsel for the respondent Company has relied upon Food Corporation of India and another v. Yadav Engineer and Contractor, 1982 AIR(SC) 1302, during the arguments.

(2.) The arbitration clause of the agreement executed in between the parties runs as under:

(3.) Section 34 of the Arbitration Act runs as under: