Gurcharan Singh and Others vs Raghbir Cycles (P.) Ltd. and Another

Hemant Gupta, J.—This order shall dispose of C.A. No. 552 of 2000 in C.P. No. 134 of 1987 and C.A. No. 555 of 2005 in C.P. No. 79

of 1987.

The petitioner filed a petition u/s 433 read with Section 439 of the Companies Act, 1956 (hereinafter referred to as the Act) C.P. No. 134 of

1987 for winding up of respondent No. 1, i.e., M/s. Raghbir Cycles (P.) Ltd. The applicants also filed a petition for rectification of register of

members u/s 155 of the Act bearing C.P. No. 79 of 1987. During the course of hearing of the said petitions on October 28, 1992, hon''ble Mr.

Justice D.S. Tewatia (retd.) was appointed as an arbitrator by the court to decide the entire dispute between the parties including the petition for

winding up and the petition filed by the applicants u/s 155 of the Act for rectification of register of members. The arbitrator appointed by the court

gave his award on January 27, 1993. Objections were raised in respect of such award by the applicants but the said award was ordered to be

made rule of the court vide order dated April 19, 1994.

Company Appeals Nos. 8 and 9 of 1994 were allowed by the Division Bench of this court on November 22,1995, and the order making

award as rule of court was set aside. Thereafter the said order was made subject matter of challenge in S. L. P. No. 27203-204 of 1995 before

the hon''ble Supreme Court of India. In the said proceedings, hon''ble Mr. Justice B.P. Jeevan Reddy (retd.) was appointed as an arbitrator by the

hon''ble Supreme Court vide order dated September 17, 1997.

The arbitrator appointed by the hon''ble Supreme Court gave his award on April 27, 1998, and subsequently the said award was made rule of

court by the hon''ble Supreme Court vide order dated October 13, 1998. The learned arbitrator has also given his supplementary award on May

1, 1999. Even the said supplementary award has been made the rule of court by the hon''ble Supreme Court of India vide order dated August 6,

1999.

The applicants have moved the present application before the company court for directions for payment of the amount due out of the income of

cinemas in terms of the award rendered by the arbitrators and made rule of the court by hon''ble Supreme Court of India.

Notice of the present application was issued to the respondents who filed reply wherein it has been asserted that the appointment of arbitrator

for referring the disputes to him was made by the hon''ble Supreme Court of India. The award was filed in the hon''ble Supreme Court and the

awards were made rule of the court by the hon''ble Supreme Court of India. In terms of Section 31 of the Arbitration Act, 1940, all questions

regarding validity, effect or existence of award has to be decided by the court in which award has been filed and by no other court. All subsequent

applications arising out of that reference and the arbitration proceedings can only be made in that court and not in any other court. Thus, it is

pointed out that the present application is not maintainable before this court.

Learned Counsel for the petitioners has vehemently argued that since this court had appointed an arbitrator vide order dated October 28, 1992,

therefore, any application in respect of the dispute which was referred to the arbitrator is maintainable before this court alone. Learned Counsel for

the petitioner relies upon Niranjan Swain Vs. State of Orissa and Others, ; Rashtriya Ispat Nigam Ltd. v. Kaveri Engineering Industries Ltd. 2002

2 A L R 484 ; Union of India v. Harbans Singh Tuli & Sons Builders (P.) Ltd. 2000 2 A L R 360; Ramkripal Sharma Vs. Union of India (UOI)

and Another, ; Hindustan Steel Works Construction Ltd. Vs. N.V. Chowdhury and Others, and Guru Nanak Foundation Vs. Rattan Singh and

Sons, .

However, I am unable to agree with the said contention of learned Counsel for the petitioner. Though it is correct that initially arbitrator was

appointed by this court but subsequently the hon''ble Supreme Court has appointed an arbitrator vide order dated September 17, 1997. Such

appointment of the arbitrator was in supersession of the arbitrator appointed by this court earlier. As a consequence of appointment of an

arbitrator by the hon''ble Supreme Court, proceedings to make the award as a rule of the court have been initiated by the parties before the

Supreme Court. Therefore, in terms of Section 31(4) of the Act, the present application is not maintainable before this court.

The applicants are at liberty to seek their remedy as may be available but the present applications are dismissed as not maintainable.