1999 (5) TMI 611

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....ession of the premises to the petitioner company in case no fresh lease deed was agreed to be 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 damage....

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....assed against the respondent company. The award in relation to return of money had also 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 ground....

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....pellants to file response/objection to the execution petition on or before 31 January, 1999. It is made clear that no further time will be available to the appellants. As soon as the objections are filed, the learned judge taking up the matters in the High court is requested to dispose of the same considering the objections and decide the same as early as convenient. It is made clear that the interim order passed on 23.11.1998 will continue to operate till the hearing of the objections by the High Court and subject to any further 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 ....

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....p;                       (N. Noorjani)           Court Master                                        Court Master"  8. The precise issue that now needs to be considered by this court is that would it be just, fair and even proper for this court to order the winding up of the respondent company for alleged default in payment of the claim ?  9. Under section 8 of the Arbitration and Reconciliation Act, 1996, the arbitration proceedings and judicial proceedings could go side by side and be taken to their logical ends. Execution proceedings are based on the award of the arbitrator and that award is the very foundation of the present winding up petition. The execution and effect of that award is fully controlled and stands stayed by the orders passed by the Hon'ble Apex Court, which are binding on all courts. It is....