JUDGMENT - A.P. SHAH, J.:---The appellants before us are the original petitioners in Company Petition No. 203 of 2001 and in the appeal, they impugn the order of the learned Company Judge, dismissing the petition. In order to appreciate the order and the appellants contentions with respect thereto, a few facts may be noted.

2. The appellants and the respondent company had entered into a lease agreement dated 30-9-1994 whereby the appellants had leased certain machinery to the respondent company, on the respondent agreeing to pay Rs. 1,32,30,000/- as lease rentals payable in instalment of Rs. 6,61,500/- each quarter extended over a period of five years effective from 16-11-1994 till 15-11-1999. It seems that the respondent committed default in payment of the lease rentals and according to the appellants a sum of Rs. 2,70,14,476/- consisting of arrears of lease rentals and service charges is due from the respondent. To the petition, the appellant annexed correspondence between the parties including the reply dated 16-12-2000 to the statutory notice dated 17-10-2000 wherein the respondent company admitted its liability but shown its inability to pay the amount due to various factors.

3. It appears to have been urged before the learned Company Judge that the terms and conditions stipulated in printed agreement were oppressive, coercive and were usurious and in particular a grievance was made that the Income Tax authorities disallowed the claim of depreciation on the machinery and therefore, the appellants have increased the lease rentals to the tune of Rs. 11,85,400/- instead of Rs. 6,61,500/- per quarter and added thereto service charges on arrears of lease rentals at the rate of 30% per annum. It was contended that the petition was filed with ulterior motive to pressurise the respondent to succumb to the coercive tactics of the appellants.

4. The learned Company Judge seems to have proceeded on the basis that the entire claim was based on the fact that the Income Tax authorities have disallowed the claim of the appellants for depreciation of the leased machinery. We may mention that the learned Judge was entirely wrong in holding that the claim is based solely on disallowance of depreciation by the Income Tax department. It is conceded before us by the learned Counsel for the respondent that the outstanding lease rentals are Rs. 29,46,000/- and the amount of service charges as per agreement is Rs. 28,36,544/-. These are figures upto end of September 2001.

5. The learned Company Judge after referring to the decision of the Supreme Court in the case of (Hind Overseas Pvt. Ltd. v. Raghunath Prasad Jhunjhunwalla and another)1, A.I.R. 1976 Supreme Court 565 held that the appellants ought to resort to the remedy of arbitration as provided in the printed agreement to resolve dispute between the parties. The learned Judge observed that:

"The petitioners have bypassed the regular civil remedy of civil suit and also bypassed the arbitration clause in the lease agreement and have resorted to this extra ordinary remedy which is to be resorted sparingly where there are no genuine dispute and the debt is an admitted liability. The petitioners have abused the process of the Court and the law by filing this petition."

The learned Judge, therefore, dismissed the petition with direction to the appellants to pay costs of Rs. 25,000/-

6. We are afraid we cannot agree with the view expressed by the learned Judge. In the first place, the learned Company Judge was not right in holding that the appellants ought to resort to the remedy of arbitration as per the agreement. It seems that the learned Judge has based his view on the observations of the Supreme Court in Hind Overseas Pvt. Ltd. which reads thus:

"36. Section 433(1) under which this application has been made has to be read with section 433(2) of the Act. Under the latter provisions where the petition is presented on the ground that it is just and equitable that the company should be wound up,

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