A party to an arbitration agreement cannot be said to be ready and willing to go to arbitration if it fails to take any steps to appoint an arbitrator even after repeated requests from the other party.

BIRENDRA PRASAD SINHA, J.

1. This is an appeal by the defendants against an order passed by the Ist Subordinate Judge, Muzaffarpur, in a money suit.

2. The plaintiff has filed the suit claiming Rs. 5,90,052/- (five lakhs ninety thousand fifty two). It appears that the plaintiff-respondent entered into a contract with the defendants-appellants Corporation for the supply of sixty thousand industrial Gloves to be sold and supplied to a firm of Australia. Clause 13 of the contract contained an arbitration clause which, inter alia, stipulated that all disputes or differences arising under the contract would be referred to the arbitration of an officer of the appellant corporation. The agreement was entered into on 21-1-1980. The suit was filed by the plaintiff on 17-1-1983. On 7-4-1983 a petition was filed on behalf of the defendants-appellants under Sec.34 of the Arbitration Act (in short the Act) in which it was stated that the defendants-appellants were willing when they received a letter dated 4-11-1982 from the plaintiff and were still willing to do all things necessary within the ambit of the corporation for the proper enforcement of the arbitration clause. It was prayed that the suit should be stayed as provided under Sec.34 of the Act. Learned Subordinate Judge, after hearing the parties, dismissed the application under Sec.34 of the Act. On a finding that the defendants-appellants were not willing and were not ready to appoint an arbitrator to decide the dispute. The defendant corporation has, therefore, filed this appeal against the impugned order dated 20th July 1983.

3. Mr. Aftab Alam, learned counsel for the appellants, submitted that the learned Subordinate Judge should not have dismissed the petition under Sec.34 of the Act for mere inaction on the part of the defendants. He submitted that there must be something more i.e., some positive act on the part of the defendants signifying their unwillingness or want of readiness to go to the arbitration.

4. The question, therefore, is whether in the facts and circumstances of this case it can be said that the defendants-appellants were willing for the appointment of an arbitrator prior to the filing of the suit.

5. From the facts of the present case it will appear that the plaintiff respondent was required to supply the Gloves, latest by Mar. 1980 and on the basis of a certificate of the defendants had secured a packing credit advance for the purchase of materials. Twenty five thousand Gloves were manufactured and on 31-3-1980 the plaintiff informed the defendants to inspect and lift the goods. The goods were inspected and approved and the plaintiff was informed by a telegram dated 7-4-1980 from the defendants to stop further production. Since June 1980 the plaintiffs were requesting the defendants to arrange early disposal of the goods as the Bank loan was every day multiplying, but the defendants did not take any action. Ultimately having awaited for quite sometime the plaintiff wrote a letter on 4-11-1982 to the defendants to appoint an arbitrator which letter was received by the defendants on 8-11-1982. The defendants did not take any action. Thereafter the plaintiff sent a notice under Section 80 of the Code of Civil Procedure (in short the Code) to the defendants on 10-12-1982, which was served on them on 13-12-1982. Even then the defendants did not take any action. The suit was thereupon filed on 17-1-1983. The plaintiffs in their rejoinder in the Court below stated that the Bank had given them a threat for filing a suit and the period of limitation of the plaintiffs claim was also near. They had no option but to file a suit. It was, therefore, not only inaction on the part of the defendants but they purposely avoided to appoint any arbitrator with the ulterior motive to see that the claim of the plaintiff was barred.

6. Sec.34 of the Act provides that when any party to the arbitration agreement commences any legal proceeding against any other party to the ag