JUDGMENT Ajoy Nath Ray, J. 1. This is an application for stay of a winding up petition under s. 34 of the Arbitration Act. Usually such applications are found in the suit Court rather than in the Company Court. 2. The parties herein entered into five different agreements in respect of five different pieces of movable machinery, two in November, 1988, two in November, 1989 and one in 1991. The claim of the petitioning creditor who is the respondent herein is to the tune of Rs. 4.90 lakh. 3. It is not in dispute between the parties that there is an arbitration agreement contained in each of the five written agreements relating to the said machines. It is also quite clear from the arbitration clause that it is very wide and comprehensive, in that all disputes arising from the agreements or touching the same were agreed to be referred according to the written arbitration clause. 4. Mr. Kar appearing for the respondent has resisted the application on principally three grounds. First he said that the claim of the petitioning creditor is indisputable and even admitted by the company in the correspondence so that there is no dispute existing between the parties to go to an arbitrator at all. The question of stay thus does not arise. 5. The second argument of Mr. Kar was that a stay application of this nature is not permissible for stopping the further progress of a winding up application. 6. The third submission of Mr. Kar was that since on the 10th of February this year directions for affidavits were unreservedly taken in the winding up application on behalf of the company, the same is such a step in the proceedings as would disentitle them from maintaining a subsequent stay application under s. 34. 7. In regard to the first point, it is important to understand what is a dispute between two parties. Whenever one of the two parties wishes the other to act in a certain way and the other does not so act, in all such cases, there exists a dispute between the two parties. It is, in my opinion, fallacious to think that a dispute can exist between two parties only when there is a dispute raised as to the declaration of their rights or liabilities. It is, in my opinion, fallacious to think that a dispute can exist between two parties only when there is a dispute raised as to the declaration of their rights or liabilities. Thus, it is as much a dispute between A and B, if B admits his liability to A in a series of letters and yet does not pay money, as it would be a dispute between them if B denied in the correspondence the liability to pay at all. 8. The above position is often overlooked but it cannot be overlooked without leading to absurdity. Say, A and B go before an Arbitrator on the basis of an arbitration agreement, and it appears from the correspondence that B has again and again admitted his liability to pay. It could not, on that basis, be submitted by B to the Arbitrator that the Arbitrator has no jurisdiction to pass an award because he has admitted the liability. The Arbitrator would obviously have jurisdiction to pass the award on the basis of admissions contained in papers before him equally, if not more so, as upon an adjudication by him on papers speaking with a different voice from the different contesting parties. 9. That mere non-payment is a referable dispute has long been recognised in the law of our country and if any authority is needed for the above proposition, the same can be had from the case of Uttam Chand, reported in ILR 46 Cal. 534, alternatively AIR 1920 Cal. 143 and referred to by the Supreme Court in the case of Birla Cotton, reported in AIR 1967 SC 688 at para 6. 10. The true situation where no dispute exists between the parties is one like what was before the Supreme Court in the said Birla Cotton case. There the parties had no dispute upon the contract which contained the arbitration clause. The Union of India held up payment because of disputes in relation to another contract. In such a situation, where that other contract is also not subject to the arbitration clause, clearly the arbitrator would have no jurisdiction to proceed because the parties were not disputing at all on the contract which he could arbitrate upon. The present case before me is clearly not one such. 11. The second argument of Mr. In such a situation, where that other contract is also not subject to the arbitration clause, clearly the arbitrator would have no jurisdiction to proceed because the parties were not disputing at all on the contract which he could arbitrate upon. The present case before me is clearly not one such. 11. The second argument of Mr. Kar that a winding, up application cannot be stayed under s. 34 is supported by at least two decisions of the Punjab & Haryana High Court being the cases of Shaligram and the case of William Jacks. The first of these two cases is apparently unreported, but is referred to in the second one reported in 1986 (59) Company Cases, page 876. The High Court there appears to have proceeded on the basis that a winding up application cannot be stayed under the Arbitration Act because the remedies obtainable in the winding up Court cannot be granted by the arbitrator. This, in the manner 1 venture to read the said cases, was the principal reason for their Lordships to hold that a stay application in regard to a winding up matter is misconceived. 12. With the greatest of respect I am unable to agree with the above view. Section 34 of the Arbitration Act permits an application for stay of any legal proceedings "in respect of any matter agreed to be referred". Thus it is not merely a suit that can be stayed under the said Section but any legal proceedings of whatever nature. 13. It is not necessary that the arbitrator must be empowered to grant the same remedy as the culmination of the legal proceedings sought to be stayed could have produced. Even in a simple case of a suit and a reference before an arbitrator, the two remedies obtained are different. A Court upon hearing a suit passes a decree which is immediately executable. An Arbitrator on the other hand can only pass an award which is different from a decree and needs to be ripened into a decree by further steps. 14. It is not, therefore, only by looking at the remedy that the arbitrator can grant, or only by looking at the prayers in the legal proceedings that is sought to be stayed, that one must come to the conclusion whether s. 34 applies or not. 14. It is not, therefore, only by looking at the remedy that the arbitrator can grant, or only by looking at the prayers in the legal proceedings that is sought to be stayed, that one must come to the conclusion whether s. 34 applies or not. The test should rather be what the Section itself says, namely whether the legal proceedings sought to be stayed are in respect of any matter agreed to be referred. 15. Can it be said in this case that the winding up petition is not in respect of any matter relating to or touching the five hire purchase agreements containing the arbitration clauses? To my mind, even the asking of the question gives its, own answer, and the answer clearly is that it cannot in any view of the matter be so said. 16. Mr. Girish Gupta appearing for the applicant rightly submitted that under s. 34 (1) (a) of the Companies Act a company must be a debtor so that the winding up notice served upon it might raise the presumption of inability to pay. He rightly relied in this regard upon the case reported in AIR 1927 Cal. 625. In a winding up petition when a company mala fide seeks to dispute an indisputable debt, the company court comes to the conclusion that the debt being really indisputable, the attempts at denial by the company are to be brushed aside and it should be held to be a debtor to the petitioning creditor at the time the winding up notice was served. Thus the company court comes to a finding as to the liability of the company before it receives the winding up petition and admits the same for advertisements and further hearing, although such determination is made by the Company Court only in clear cut cases, where the defence of the company is moonshine or mala fide. 17. Whether the defence of Mr. Gupta to the winding up application itself is prima facie sound or semi-sound or unsound or mala fide is to be determined if that application is to be heard at all. It is only then that Mr. Gupta would have to urge his points, like the one that in a hire purchase agreement the lessor cannot specifically claim for payment of unpaid hire instalments but can only claim damages. It is only then that Mr. Gupta would have to urge his points, like the one that in a hire purchase agreement the lessor cannot specifically claim for payment of unpaid hire instalments but can only claim damages. In the view I take of the matter, such defence would not be raised in the winding up petition at all but, may be, before an arbitrator hereafter to be appointed. 18. The last point of Mr. Kar about taking of steps in the proceedings is to be judged on the particular circumstances of this case. The law is that the applicant under s. 34 must already have shown an unequivocal intention to participate in the proceedings if his application for stay is to be defeated thereby. There are many cases which show that praying unreservedly for time to file a written statement in a suit might well constitute such an unequivocal expression of an intention to participate. 19. It is not, however, everyday that a winding up petition is sought to be stayed under the Arbitration Act. It would be improper, in my opinion, to visit the client of Mr. Gupta with the sin of his Advocate when he asked unequivocally for time to file an affidavit in answer to the winding up petition. Full fiedged arguments on both sides were needed to come to the conclusion that s. 34 applies to winding up matters at all, and even after that there remains a difference of opinion between two High Courts. Under such circumstances it is not possible to equate the taking of time to file an affidavit in winding up to the taking of time for filing of a written statement in a suit. I cannot, therefore, in the circumstances of this case, treat the prayer for time to file affidavit to the winding up petition as an unequivocal intention to participate in the winding up matter and as a conscious choice to have the liability or the possible absence of the same determined before the Company Court rather than before an Arbitrator. In taking time and directions, to speak differently, I do not see the deliberate abandonment of a possible reference, and a selection of the Company Court as the alternative thereto. Any construction to that effect would be unduly harsh upon the petitioner company. 20. This application therefore succeeds. The winding up application shall remain permanently stayed. In taking time and directions, to speak differently, I do not see the deliberate abandonment of a possible reference, and a selection of the Company Court as the alternative thereto. Any construction to that effect would be unduly harsh upon the petitioner company. 20. This application therefore succeeds. The winding up application shall remain permanently stayed. The petitioner will be entitled to the costs of this application. 21. The parties and all others concerned to act on a signed xerox copy of this dictated order on the usual undertakings. Application allowed.