The filing of a warrant of attorney by a defendant in a suit does not, by itself, constitute a step in the proceedings that would preclude the defendant from making an application for a stay of the suit under Section 34 of the Arbitration Act, 1940.

( 1 ) THIS is an appeal against an order passed by G. K. Mitter, J. on the 21st September, 1961 whereby he made an order staying the suit instituted by Dunichand Sons and Company, against Fort Gloster Industries Ltd. , under Section 34 of the Arbitration Act. The facts are as follows: By a contract dated 18th October, 1960, put through by brokers, the petitioner, Fort Gloster Industries Limited (hereinafter referred to as the "appellant" (sic. respondent ?)) agreed to sell, and the respondent (sic. apellant) firm Dunichand. Sons and Company, (hereinafter referred to as the "respondent" (sic. appellant)) agreed to buy, 50,000 yards hessian cloth 40" x 10 at the rate of Rs. 54. 50 Np. per hundred yards, on terms and conditions contained in the Standard Contract of the Indian Jute and Hessian Exchange Limited, relating to transferable specific delivery of jute goods, including the usual arbitration clause, referring all disputes to the arbitration of the Bengal Chamber of Commerce and Industry, Calcutta. On the 21st February, 1961 the appellant gave shipping instruction to place the goods per S. S. "city of Philadelphia". On the 28th February, 1961 the respondent tendered a bill dated 22-2-1961 for Rs. 27,249. 18 Np. together with the delivery order. On the 10th March, 1961 the respondent tendered the mate's receipt. Thereafter, the respondent demanded payment of the price of the goods. The appellant claimed that there were no goods on board the vessel above-mentioned, because the goods had in fact been seized by the Custom Authorities and there was no proper tender of the mate's receipt. As the appellant failed to pay for the goods alleged to be sold and delivered under the contract, the respondent referred the dispute to arbitration of the Bengal Chamber of Commerce and Industry and this was registered as Case No. 202 of 1961. On or about the 19th June 1961, Suit No. 975 of 1961 (Dunichand Sons and Company v. Fort Gloster Industries Limited) was instituted in this Court, asking for a decree for Rs. 10,750, alternatively for an enquiry into damages, for a declaration that the tender by the defendant (respondent) of the delivery order and the mate's receipt dated February 7, 1961 was wrongful and invalid, and for other reliefs. The Writ of Summons was served on the defendant (respondent) on 27th June, 1961. On the 17th July, 1961 the defendant (respondent) executed a warrant of attorney in favour of Messrs. Khaitan and Company. This warrant was filed before the Registrar on the 18th July, 1961 and on the same day appearance was entered in the suit on behalf of the defendant-respondent. On the 17th July, 1961 even before the warrant was filed, an application was taken out under Section 34 of the Arbitration Act, which application was made returnable on the 24th July, 1961. The notice of the application was served on the solicitors of the plaintiff (appellant) on the same day. The affidavit-in-opposition herein was affirmed on August 24, 1961 and the affidavit in reply on 31st August, 1961. Thereafter, the matter came up for hearing before Mitter, J. Before the learned Judge two points were taken (1) Did the plaintiff take a step in the proceedings by entering appearance in the suit and filing a warrant of attorney as stated above, 2nd is it thereby precluded from making an application under Section 34 of the Arbitration Act? (2) Do the disputes between the parties involve the determination of difficult questions of law and facts which the arbitrators will be called upon to try and should the Court consider that as a sufficient reason for allowing the suit to go ten?

( 2 ) THE learned Judge answered the first point in the negative. As regards the second point, he held that upon the materials on record he was not prepared to say that such a serious question of law would arise for determination by the arbitrators that the Court should take it out of their hands and try it itself. In appeal, the second point has not been pr