HARYANA TELECOM LTD.versusSTERLITE INDUSTIRES (INDIA) LTD.

                     HARYANA TELECOM LTD.                                        A
                                    v.
               STERLITE INDUSTIRES (INDIA) LTD.

                             JULY 13, 1999

           [B.N. KIRPAL ANDS. RAJENDRA BABU, JJ.]                                B

     Arbitration and Conciliation Act, 1996.

      S.8-Power to refer parties to arbitration-Petition for winding up of
company pending before High Court-Application u!s 8 moved for orders to C
refer the matter to arbitrator as there was an arbitration agreement between
the parties-High Court dismissed the application-Held, the matter-which-
is pending before the High Court in which the application was filed was
relating to winding up of the company-That could not be referred to
arbitration-High Court was right in rejecting the application.               D
    CIVIL APPELLATE JURISDICTION : Special Leave Petition No.
3695of1999.

     From the Judgment and Order dated 7.1.99 of the Punjab & Haryana
High Court in Company Appeal No. l of 1998.                                      E
      Arun Jaitley, Pradeep K. Bakshi and Peyush Kalra for the Petitioner.

      Bharat Sangal (N.P.) for the Respondent.

      The following Order of the Court was delivered :                           F

      On a winding up petition having been filed by the respondent before
the High Court, the petitioner herein moved an application under Section 8
of the Arbitration and Conciliation Act, 1996, inter a/ia, contending that the
High Court should refer the matter to arbitration.
                                                                                 G
      The Single Judge dismissed the application and the same was upheld
by the Division Bench. while dismissing the appeal the High Court referred
to similar cases relating to applications which have been filed under the
provisions of the Indians Arbitration Act, 1940 where the consistent view of
the High Courts was that the question regarding the winding up of a company H
                                     861                         .
    862                      SUPREME COURT REPORTS                      [1999] 3 S.C.R.

A could not be referred to an arbitrator.
           It is submitted by learned counsel for the petitioner that the language
     of Section 8 of the 1996 Act is different. Mr. Jaitely, submits that according
     to Section 8(1) the Judicial Authority is bound to refer that matter to the
    .arbitration when an arbitration agreement exists between the parties.
B
          Section 8 of the 1996 Act reads as under :

            "Power to refer parties to arbitration where there is an arbitration
            agreement-

C           (l) A judicial authority before which an action is brought in a matter
            which is the subject matter of an arbitration agreement shall, if a party
            so applies not later than when submitting his first statement on the
            substance of the dispute refer the parties to arbitration.

            (2) The application referred to in Sub-section
D
            (I) shall not be entertained unless it is accompanied by the original
            arbitration agreement or a duly certified copy thereof.

            (3) Notwithstanding that an application has been made under sub-
            section (l) and that the issue is pending before the judicial authority,
E           an arbitration may be commenced or continued and an arbitral award
            made."

          Sub-section (1) of section 8 provides that where the judicial authority
    before whom an action is brought in a matter, will refer the parties to arbitration
    the said matter in accordance with the arbitration agreement. This, however,
F   postulates, in our opinion, that what can be referred to the arbitrator is only
    that dispute or matter which the arbitrator is competent or empowered to
    decide.

           The claim in a petition for winding up is not for money. The petition
    filed under the Companies Act would be to the effect, in a matter like this,
G   that the company has become commercially insolvent and, therefore, should
    be wound up. The power to order winding up of a company is contained
    under the Companies Act and is conferred on the court. An arbitrator,
    notwihtstanding any agreement between the parties would have no jurisdiction
    to order winding up of a company. The matter which is pending before the
H   High Court in which the application was filed by the petitioner herein was
           HARY ANA TELECOM LTD. v. STERLITE INDUS. (INDIA) LTD.              863
    relating to winding up of the company. That could obviously not be referred A
    to the arbitration and, therefore, the High Court, in our opinion was right in
    rejecting the application.

           For the aforesaid reasons this petition is dismissed in limine.

    R.P.                                                       Petition dismissed.   B




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