TaxTMI 
TaxTMI 
1983 (10) TMI 223
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....ula, advocate to the Syndicate, on January 18, 1983, which must have been received within one week thereafter. On March 3, 1983, Mr. A.K. Jaiswal advocate, appeared on behalf of the respondent and made a request for time to enable him to file a written statement. At his request, the case was adjourned to April 7, 1983. Two days before the date of hearing, that is, on April, 5, 1983, an application (C.A. No. 54 of 1983) was filed on behalf of the Syndicate under section 34 of the Arbitration Act, 1940 (hereinafter called "the Act"), for staying the proceedings on the ground that the agreement between the parties contained an arbitration clause. The application has been contested on behalf of the company. The first contention of Mr. Bhagirath Das is that there is an arbitration clause in the agreement between the parties according to which all the disputes are to be referred to an arbitrator to be appointed by the parties by mutual agreement and in the event of the parties failing to agree, the reference would be to a nominee of the Federation of Indian Chambers of Commerce and Industry, Delhi, at the instance of the party first applying to him. He submits that, therefore, the pro....
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.... step in the proceedings within the meaning of section 34 of the Act. Consequently, the appeal was accepted and the application under section 34 was dismissed. The State went up in appeal before the Supreme Court. Dua J., while speaking for the court, after taking into consideration various cases, observed that there was no serious infirmity in the impugned judgment of the High Court. The District Government counsel in that case was empowered to appear and act for and on behalf of the Government and also to make applications on its behalf. If the counsel wanted time for the purpose of having fuller instructions, he could have asked for it specifically, for, he was not a layman ignorant about the legal position but a professional lawyer retained by the Government for the purpose of acting and pleading on behalf of the Government as a recognised agent. He, however, chose instead to ask for time specifically for filing a written statement and this act he purported to do on behalf of the State Government which he was fully empowered to do. The State took the benefit of his appearance and his successful prayer for adjournment of the case by one month for the purpose of filing the writte....
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....UC Punj. 4917, the summonses were served on the branch office of the defendant and it was necessary to obtain instructions from the head office of the company. Consequently, an adjournment was given on an oral request. In Moti Ram's case, AIR 1957 Punj. 223, the Government Pleader appeared voluntarily without any authority from the Government to represent it and asked for adjournment for filing the written statement on the assumption that in due course he would receive instructions from the Government. Therefore, it was held that the request would not amount to a step in the proceedings. From the above facts, it is clear that both the cases are distinguishable. After taking into consideration all the aforesaid facts and the case-law, I am of the view that the request for an adjournment for filing a written statement on behalf of the Syndicate amounts to a step in the proceedings. Consequently, it is not entitled to the benefit of section 34 of the Act. Mr. Khaitan raised some more points. Though in view of the above observations, they are of academic interest only, yet I deem it proper to deal with them. Mr. Khaitan argues that in the application, material particulars of t....
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....lication has been made mala fide to delay the proceedings. The last submission of Mr. Khaitan is that an application under section 34 of the Arbitration Act is not maintainable in a winding-up petition In support of his contention, he places reliance on a decision of this court in Salig Ram v. New Suraj Financiers & Chit Fund Company (C.A. No. 8 of 1979 in C.P. No. 147 of 1978, decided on July 12, 1979). I also find substance in this submission. The jurisdiction for ordering winding-up of a company is a special jurisdiction which has been conferred on the High Courts. The object of passing such an order is that the assets of the company should be realised and debts paid expeditiously. The passing of such an order against the company has a serious consequence and, therefore, the jurisdiction has been conferred on the High Courts. The order of winding-up can be passed on the grounds mentioned in section 433 of the Companies Act. It does not appear to be the intention of the Legislature that such a power can be conferred on an arbitrator. The petition for winding-up cannot be treated as one for recovery of an amount of debt from the company. Therefore, I am of the opinion that an a....