TMI Blog1999 (5) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... executed between the parties. In terms of the lease deed if the respondent company failed to hand over the vacant possession of the premises to the petitioner company, the respondent company is stated to be liable to pay the market rent prevailing at time, which was to be decided by the Government approved valuer and in the event of dispute, matter was to be referred to an arbitrator, whose decision was final on the parties. 3. According to the petitioner company, as the respondent company failed to hand over the vacant possession of the premises on 31.10.1996, there being no extension of lease agreement, between the parties, the petitioner company invoked the arbitration clause contained in the lease agreement, dated 28.10.1993. The arbitrator is stated to have entered upon the reference and published his award dated 28.4.1997. A copy of the award is annexed as Annexure IV to the petitioner. The award was served upon the respondent company. Some corrections were made in the award published by the arbitrator on the application of the petitioner company. Learned arbitrator awarded damages at the rite of ₹ 97,410 per month or part thereof with effect from 1.11.1996 instead o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o granted the relief of eviction in favour of the petitioner company. This award had been passed ex parte against the respondent company as is clear from the copy of the award which is annexed to the petition as Annexure-IV. The petitioner company filed an execution petition before the High Court of Delhi at New Delhi being Execution Petition No. 122 of 1998. In the said execution petition, upon notice, the respondent company appeared and had filed objections. These objections related to the merits of the case as well as the very existence and validity of the award including the plea of jurisdiction. The respondent company had stated that the award passed by the arbitrator is a nullity and objections thereto could be filed at any stage. The award patently suffers from an error of jurisdiction, as the arbitrator could not pass a decree for eviction despite the terms of the agreements. The correctness of the amount awarded and the interest imposed by the award has also been challenged in addition to the fact that even the market rent for the premises has not been correctly assessed. All these grounds have been taken and alleged to have been supported by the judgment of the Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther directions which the High Court may think fit to issue. The appeals are allowed accordingly. It is made clear that we are not making any observations on the merits of the controversy. Signed (S. B. Majmudar, J.) N. Delhi Signed (U. C. Banerjee, J.) 4 January, 1999 7. As it is clear from the above order of the Hon'ble Apex Court, the execution of the award, which is the very foundation of the present winding up petition, has already been stayed. Interim order, dated 23.11.1998 was continued till the hearing of the objections by the High Court and was further subject to the objections by the High Court and was further subject to the directions which the High Court may think fit to issue. The respondent company was further required to make the payments in term of the interim orders, which fully covered the question of what amounts would be paid by the respondent company to the petitioner company during the pendency of the hearing of the objections before the High Court. The order of the Hon'ble Apex Court till the disposal of the objections by the High Court has already attained finality and conclusiveness between th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle of law that a winding up petition cannot be treated as a mere process for recovery of money besides the company being unable to pay its debts without any bona fide dispute. The court should consider whether it is just and equitable to order the winding up of the respondent company. In this regard, reference can be made in case titled as Bukhtiarpur Bihar Light Railway Co. Ltd. v. Union of India and another AIR 1954 Cal 499 and Harinagar Sugar Mills Co. Ltd. Bombay v. M. W. Pradhan (1966) 2 Comp LJ 17 (SC) : AIR 1966 SC 1707. 10. The courts have held that winding up petition cannot be treated as an alternative to the suit or the legal process of a suit. Certain controversies can only be properly adjudicated in the proceedings other than winding up. In the present case, admittedly, the proceedings are pending before the court of competent jurisdiction and any order passed by this court would apparently be affecting the orders of Hon'ble Supreme Court of India, which is not permissible. The provisions of sections 433 and 434 of the Act do not vest any right in the petitioner, but cases have to be considered on their own merits and keeping in view the facts and circums ..... X X X X Extracts X X X X X X X X Extracts X X X X
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