1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY APPEAL NO.32 OF 2007 WITH COMPANY APPLICATION NO.1233 OF 2007 M/s.Star Metal Forms Pvt.Ltd. & Ors. ..Appellants. V/s. Mr.Harisinh Solanki & Ors. ..Respondents. Ms.Madhuri V. Gaikwad for appellants. Mr.Nirav K. Majmudar for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : JANUARY 25, 2008. DATE : JANUARY 25, 2008. DATE : JANUARY 25, 2008. P.C. : P.C. : P.C. : 1. Having considered the rival submissions, I am inclined to uphold the ultimate conclusion reached by the Company Law Board in the decision, which is impugned in the present appeal. Company Law Board was called upon to consider whether in terms of clause 42 of the Articles of Association, the parties were obliged to resort to arbitration being an Arbitration Agreement. Clause 42 of the Articles of Association reads thus: "42. Whenever any difference arises between the company on the one hand and any of the members, their executors, administrators, assigns, on the other touching the true intent or construction or the incidence or consiconsequences of this 2 presents or of the status all touching any things then or there after done, executed, omitted or suffered in pursuance of this presents or of the status or touching any breach or alleged breach otherwise relating to the premises or to this present or to any statute affecting to the company or to any of the affairs or matter of management of the company, including the fixing of the fair valuing of the shares of the company, every such difference shall be referred to the decision of Shri T.C.Solanki or his nominee as the sole arbitrator, the submission to arbitration on shall be subject as to the mode and consequence of the reference in all other respect to the provision arbitrations Act for the time being in force and decision of Shri T.C.Solanki or his nominee the sole arbitrator shall be final and binding upon parties in defence." 2. On plain language of the above said Article, it is obvious that only dispute between the company on the one hand and any of the members, executors, administrators, assigns, on the other touching the true intent or construction or the incidence or consequences of the Articles or the status touching any things then or thereafter done, executed, omitted or suffered in pursuance of the Article were amenable to arbitration before Shri T.C.Solanki or his nominee as the sole arbitrator in the present case. The proceedings brought before the Company Law Board are not only between the company on the one hand and any of the members as such. But for the nature of dispute brought before the Company Law Board on the 3 allegation of operation and mismanagement, it was also a matter between the members interse. If the dispute is also between members interse, that is not covered by clause 42 of the Article of Association. Thus understood, assuming that the said clause is an arbitration agreement for the purpose of section 2(b) r/w section 7 of the Arbitration and Conciliation Act, 1996, such matter cannot be referred to arbitration by the Court having regard to the exposition of the Apex Court in the case of Sukanaya Sukanaya Sukanaya Holdings Pvt.Ltd. V/s. Jayash H. Pandeya(JT 2003 4 Holdings Pvt.Ltd. V/s. Jayash H. Pandeya(JT 2003 4 Holdings Pvt.Ltd. V/s. Jayash H. Pandeya(JT 2003 4 SC 58). SC 58). SC 58). It is not necessary to enter into any other controversy, inasmuch as, on the above findings, the request of the Appellants to call upon the Company Law Board to refer the matter to the arbitrator is uncalled for. Accordingly, no fault can be found with the view taken by the Company Law Board that the dispute pending before it could not be referred to be adjudicated by the Arbitrator. Hence dismissed. 3. In view of the dismissal of the Company Appeal, nothing survives in the Company Application. Hence dismissed. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)