ORDER
A.M. Sapre, J.
1. This is a company petition filed under Section 433 of the Companies Act seeking winding up of the respondent company, known as Kamar Trading Co. (P.) Ltd. In substance, the winding up is sought on the allegations that petitioner company being the owner of certain equipments as also vehicles had supplied to respondent-company on hire. It is alleged that to secure the rights/obligation of parties and also to ensure timely payment, two separate agreements were also entered into as hire purchase agreements. It was alleged that since respondent failed to make the payment due as per agreements, the dispute arose between the parties as to the extent of total payment payable by the respondent. To decide this dispute, the matter was referred to a sole arbitrator. The arbitrator then embarked upon the reference made and delivered an award. In terms of an award the respondent was liable to pay a sum of Rs. 8,36,971 to the petitioner. It is this amount, which according to petitioner was not being paid by the respondent despite notices sent by the petitioner and hence, this petition has been filed seeking winding up of the respondent company under Section 433 of the Companies Act on the ground of their inability to pay the dues i.e. a sum recoverable under an award.
2. Heard Shri H.Y. Mehta, learned counsel for the petitioner company.
3. Having heard learned counsel for the petitioner and having perused the record of the case, I find no case to entertain and/or admit this company petition and hence, it deserves to be dismissed in limine.
4. In my considered view, the remedy of petitioner has to be under the Arbitration Act for enforcement of a money award and realize the dues recoverable under the said award. The petitioner cannot partly proceed under the Arbitration Act i.e., for obtaining the award and for its execution resort to the remedy of winding up. The Arbitration Act is a complete code in itself and provides for all machinery right from initiating the proceedings for obtaining award till its execution. There is no reason why the petitioner be not called upon to pursue all those statutory remedies available under the Arbitration Act rather than to invoke the discretionary remedy of filing a petition for winding up.
5. A remedy of winding up of any company under the Companies Act is a discretionary remedy. It is for this Court to decide as to whether a strong prima facie case on facts is made out for admission of winding up petition against any company. Indeed Section 443(2) of the Act empowers this Court to dismiss the petition, if it is of the opinion that some other remedy is available to the petitioner for realisation of their dues or that they are unreasonable in pursuing the remedy of winding up. The reason is that winding up of any company is always regarded as an extreme and/or last remedy. It is a death of any company whose existence comes to an end on passing of a winding up order. The courts have to be very cautious in their approach while entertaining any winding up petition against any company. No creditor can take advantage of the fact for filing a petition for winding up only because their debtor happens to be a company. Though this is one of the most important factor which enable the creditor to file petition for winding up, but it is equally necessary for the petitioner to make out very strong and prima facie case on facts.
6. As observed supra, when admittedly the petitioner has invoked the provisions of the Arbitration Act then they must exhaust all its provisions for realisation of their alleged dues under an award. A petition for winding up may not be the proper, effective and suitable remedy for realisation of their dues in the garb of seeking winding up.
7. The aforesaid discussion is sufficient to dismiss the petition. The petition fails and is dismissed in limine.