The court's discretion under Section 34 of the Arbitration Act, 1940 should be exercised to refuse a stay of suit when there is a possibility of conflicting decisions and plurality of proceedings, and when the balance of convenience favors the continuation of the suit.

RAMENDRA MOHAN DATTA, J.

( 1 ) THIS is an application for stay of suit under Section 34 of the Arbitration Act X of 1940. It is quite apparent from the plaint that the subject-matter of the suit being Suit No. 75 of 1973 (Food Corporation of India v. Srish Chandra Guha) filed in this Court on February 24, 1973 is covered by the arbitration clause in the contract entered into by and between the parties herein.

( 2 ) MR. Jayanta Mittcr, counsel for the Food Corporation of India, contends that in the facts and circumstances of this case, the discretion of the Court should be exercised in refusing to stay the suit because of the following grounds. It is contended that the averment relating to readiness and willingness on the part of the applicant made in paragraph 9 of the petition have been verified as submissions and this being a question of fact and the verification being in that form it should be held that the applicant for stay has failed to discharge the onus of proving the readiness and willingness and the application should be dismissed on this ground alone. On this point it is also argued that the applicant for stay must plead and prove that he was ready and willing at the date of the commencement of the legal proceedings and in order to prove that, the applicant would be in a position to show that he evinced his intention to go to arbitration even before the date of the commencement of the legal proceedings.

( 3 ) THE next point urged by Mr. Mitter is that the discretion should be exercised in refusing to stay because the facts and circumstances of this case disclose that there is every possibility of there being conflict of decisions and plurality of proceedings if the suit is stayed and in order to avoid such situation the stay should be refused in the exercise of the Court's discretion under Section 34 of the Arbitration Act. 1940.

( 4 ) AS regards the first point, in my opinion, readiness and willingness is a question of fact and the Court has to be satisfied about such conduct on the part of the applicant. Accordingly, the applicant for stay has to state all facts from which the Court would be in a position to come to the finding that the said applicant was, at the time when the proceedings were commenced and upto the date of the bearing or the order to be made in the application, ready and willing to do all things necessary to the proper conduct of the arbitration. It follows that whether the applicant was, at

the material time, ready and willing or not would be a question of fact. The applicant is not expected to know when the legal proceedings commenced. He usually comes to know of it after the writ of summons is served on him. It is at that stage only that he gets an opportunity to make the application for stay and usually the only evidence before the Court, as to the applicant's readiness and willigness at and from the date of the institution of the legal proceedings upto the date of the knowledge thereof by service of the writ of summons, is his affidavit evidence which is verified as true to his knowledge and the Court has to act on such affidavit evidence. Accordingly, such averment as to the readiness and willingness cannot be verified as submissions. This readi-ness and willingness is one of the most vital factors on the basis whereof the Court has to exercise its discretion under Section 34 of the Arbitration Act, 1940. Hence, if such averment would be verified as submission then the Court cannot rely thereon and cannot be in a position to exercise its discretion in favour of granting stay.

( 5 ) RELIANCE was placed on the case of Sitaram Gupta v. Bijoyesh Mukherjee, reported in (1959) 63 Cal WN 175 but in my opinion the said case has no application to the facts and circumstances of this case. That was a case relating to the amendment of verification in a matter under the Representation of the People Act, 1951. That being the position, I hold that there is no averment relating to readiness and willin

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