An application for stay of a suit under Section 34 of the Arbitration Act, 1940, must also fulfil the limitation for leave to defend under Order 37 of the Code of Civil Procedure.

SABYASACHI MUKHARJI, J.

( 1 ) THIS is an application under Section 34 of the Arbitration Act, 1940. The application relates to a suit filed under Order 37 of the Code of Civil Procedure. In the suit the plaintiff has claimed a decree for Rupees 1. 07. 604. 64 P. against the applicant. The claim is bused on certain hundies drawn and accepted by the applicant in respect of certain goods delivered against the challans by the plaintiff. That the hundies were drawn and accepted in discharge of delivery of the goods is apparent from the hundies - negotiable instruments - themselves which are annexed to the plaint. The suit was filed on the 5th February, 1974, and this application was made under Section 34 of the Arbitration Act, 1940, or, the 12th March, 1974. It is the case of the applicant that the goods which were delivered by the plaintiff-respondent were defective and damaged and there was also failure to deliver the goods in time as a consequence whereof the applicant had suffered damages and in respect of which the applicant is entitled to claim the damages. The goods were delivered under certain contracts and that position is undisputed. These written contracts contained arbitration clauses to the following effect :--"if any dispute or differences shall arise between the buyer and the seller concerning this order it shall be referred to arbitration in Calcutta under the rules of the Tribunal of Arbitration of the Indian Chamber of Commerce in Calcutta and any award or awards made shall be final and binding on both the parties. "it is the case of the applicant that as the suit related to the hundies which were given in discharge of the obligations for payment in respect of delivery of the goods and as there were disputes as to the quality and time for delivery of the goods, the disputes that the applicant was raising were covered by the arbitration agreements and as such the suit under Order 37 filed by the respondent/plaintiff should be stayed. The first question that requires consideration in this case, is, whether the suit is in respect of the matter agreed to be referred to arbitration under the clauses of the contracts mentioned hereinbefore. Counsel for the respondent contended that the suit was only a suit on the negotiable instruments and his client had accepted the negotiable in-struments, namely, the hundies in this case in discharge of the right to get payment and his cause of action was based on the said negotiable instruments and as such the arbitration clauses did not cover or did not contemplate any dispute in respect of the suit filed by the plaintiff on the negotiable instruments given in discharge of the boliga-tion for payment. In support of this argument counsel for the respondent drew my attention to the decision of the Supreme Court in case of Commr. of Income-tax, Bombay South, Bombay v. Ogale Glass Works Ltd. , where the Supreme Court observed that when it was said that a payment by negotiable instrument was a conditional payment, what was meant was that such pyment was subject to a condition subsequent that if the negotiable instrument was dishonoured on presentation, the creditor might consider it as waste paper and resort to his original demand. In my opinion the proposition that negotiable instrument gives a cause of action independent as such and of original consideration cannot be disputed, but that proposition, in my opinion, has no relevance in determining the present controversy before me. Reliance was also placed on the decision of the Supreme Court in the case of Ramlal Onkarmal Firm v. Mohanlal Jogani Rice and Atta Mills, and on the observations at pages. 1681 and 1682 of the report. This case in my opinion held the similar proposition and is not quite germane to the point in issue before me. Looking at the arbitration clauses it appears to me that the clauses were wide enough to include a dispute arising in respect of a discharge of the obligation for payment. Therefore, even if there has

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