JUDGMENT
A.K. Sikri, J.
1. The petitioner had supplied certain material, namely, HDPE pipes of certain specifications to the respondent (hereinafter referred to as `the company’) and raised invoices numbers 33, 34, 35 and 36 of dated 21st May, 1999 for a sum of Rs. 4,44,540/- each and invoices numbers 37 and 38, both dated 22nd May, 1999 for a sum of Rs.4,00,086/- each and invoice No.39 dated 22nd May, 1999 for a sum of Rs. 3,85,268/-. According to the petitioner, total amount payable against these invoices was Rs. 29,63,600/-. The company, however, paid Rs. 2,50,000/- , that too belatedly and after much persuasion on 13th March, 2000 and even when vide letter dated 2nd August, 2000 the petitioner agreed to allow a special discount of 8% on the accepted basic price, excise duty @ 16 and CST @ 1% on extra balance of 2000 meters of 355mm OD PE-80 HDPE pipes, balance of Rs. 19,49,600/- has not been paid. Statutory notice dated 9th May, 2002 was served for payment of the aforesaid amount along with interest and the envelope was returned with the remarks `refused to accept’ which amounts to deemed service. On the ground that the company has not paid the sum and is unable to the pay the same, present petition is filed seeking winding up of the company.
2. The transaction, as per the petitioner’s version, is explained in brief above. However, in the petition the petitioner has given details of the transaction between the parties which led issuance of Letter of Intent dated 28th January, 1999 by the company to the petitioner for supply of the material and Letter of Intent dated 2nd February, 1999 for supplying, laying, erection and commissioning. The petitioner has also given the details of the communications exchanged between them after the supply and erection of the material and has itself stated that certain disputes were raised by the company although the petitioner blames the company for the same. Further, according to the petitioner itself, the company had written letters blaming the petitioner for delay in the execution of laying, erection and commissioning of the work and ultimately vide letter dated 27th October, 1999 terminated the contract and requested the petitioner to refund a sum of Rs. 7,79,520/- paid to the petitioner by the company tating the termination was necessitated because of delay in completion of the work. However, the petitioner treats the said termination of the contract as arbitrary and mala fide and, therefore, it replied vide letter dated 10th December, 1999 refuting he stand of the company. Subsequently, it also wrote letters dated 5th January and 11th March, 2000 and asked for release of the balance payments. Reminders were also sent thereafter. It is also mentioned that further correspondence took place between the parties for settling the issues with respect to payments and supply of the balance quantity of material to the company. Some discussions ensued and ultimately the petitioner agreed to give certain discount vide letter dated 2nd August, 2000 as noted above. Joint meetings were also held but did not yield any result and as the company was not making payments, notices were sent demanding the payment.
3. Particulars of the correspondence exchanged between the parties are not stated in detail as the narration of facts disclosed by the petitioner itself would show that there are serious disputes between the parties regarding supply of the material and commissioning thereof. In fact as disclosed by the company in its reply, the contract between the parties contains an arbitration agreement as per which disputes arising out the said contract are to be settled by means of arbitration in terms of the following clause:
“If any dispute of difference whatsoever arises between the parties of or relating to the construction, meaning, scope, operation or effect of this contract or the validity or the breach thereof shall be settled by Sole Arbitration of Sole Arbitrator appointed by Managing Director of Goyal MG Gases Limited, who would also have right to appoint alternate Arbitrator in place of the aforesaid Arbitrator, in case of his death or being incapable or denial. The Award made in pursuance thereof shall be binding on the parties hereto. The arbitration proceedings shall be held at New Delhi. The power of the Managing Director of Goyal MG Gases Limited to appoint a Sole Arbitrator shall not be challenged by either party. Further, the parties agree that the Arbitrator so appointed may be an employee and/or professional retainer and/or person who has a relation or interest in Goyal MG Gases Ltd.”
4. Not only this, as far back as on 27th October, 1999 the company invoked this arbitration clause. Since the petitioner did not comply with the said communication, the company appointed Mr. Justice J.K. Mehra (Retd.) as the arbitrator and the arbitrator even commenced the proceedings from the said date i.e. 27th October, 1999. According to the company, therefore, all the disputes are to be settled in the said arbitration proceedings. The company filed the statement of claim before the learned Arbitrator and in the reply filed on 17th February, 2004 it has been stated that the learned Arbitrator had fixed 12th April, 2004 for further proceedings i.e. settlement of issues.
5. Thus, it would be clear from the aforesaid sequence of events that much before filing of this petition in the year 2002, the company had raised the disputes and even invoked the arbitration. According to the company, it is the company which is to recover the amount from the petitioner and has, therefore, filed its claim before the learned Arbitrator. It would be of interest to note that the petitioner also filed its counter claims (which are subject matter of this petition) before the learned Arbitrator. It is a different matter that vide order dated 22nd October, 2004 passed in those proceedings by the learned Arbitrator, those claims are held to be not maintainable being barred by limitation. If the petitioner feels itself aggrieved by this order it has the remedy against that order under the provisions of the Arbitration and Conciliation Act, 1996. What is to be noted by me is that it is not a case where any liability is acknowledged; there are serious disputes between the parties in the nature of claims and counter claims and the matter is pending before the learned Arbitrator. The disputes raised by the company are not after the filing of the present petition but in fact it appointed its arbitrator almost three years before filing the present petition which was filed at the time when the arbitration proceedings were at advanced stage. If there is any grievance in respect of those arbitration proceedings, remedy lies elsewhere. It is not a case where the present petition merits any consideration in so far as it seeks winding up of the company.
6. This petition is accordingly dismissed. Application also stands disposed of.