CHAKRAVARTTI, C. J.

( 1 ) THIS appeal can be disposed of on a short ground. It is an appeal against a judgment and order of Bachawat J. dated 27-6-1952, by which the learned Judge, acting under Section 34, Indian Arbitration Act, directed further proceedings in a suit brought by the appellant to be stayed. He did so on the ground that the subject-matter of the suit lay within the ambit of an arbitration clause.

( 2 ) IN view of the ground upon which we are going to base our decision, it is not necessary to state the facts at any great length. It will suffice to" say that the appellant brought a suit for the recovery of a sum of Rs. 40,189-6-3 on the basis of an account stated which he annexed to his plaint. That account, according to him, had been signed and accepted on behalf of the respondent-firm by one of its partners. The plaint proceeded to state that the respondent-firm had failed and neglected to pay the amount or any part thereof in spite of demands and asked for a decree for the amount claimed as also the usual incidental reliefs.

( 3 ) IT will be noticed that the suit, as laid in the plaint, is a suit based entirely on the acknowledgment of liability contained in the accounts stated and the promise to pay implied therein.

( 4 ) IT is for a stay of that suit that the respondent-firm made an application under Section 34, Indian Arbitration Act. In para. 5 of the application it was stated that a suit had been brought "on the basis of the said Distribution Agreement referred hereinbefore", and the agreement set up is one dated 13-8-1949, more particularly described in para. 3 of the application. Except stating in general terms that the suit had been brought on the basis of the agreement, the respondent-firm did not disclose what its defence to the claim would be or what dispute it wanted to raise. Reference was, however, made to an arbitration clause contained in the agreement which, so far as is material, provides that the parties have agreed "to settle all disputes and differences arising out of this agreement by reference to arbitration". To the application for stay a copy of the agreement was annexed.

( 5 ) THE respondent-firm annexed a further document to its application. That was a copy of an affidavit, said to have been affirmed by the appellant in connection with an intended application for a summary judgment in the suit under Chapter 13a of the Rules of the Original Side, but, in fact, never used. That affidavit contains some reference to a statement of accounts in respect of expenses, advances and charges due to the appellant "from 4-7-1949 to 25-9-1950. " It may be stated here that the statement of accounts annexed to the plaint is also a statement relating to the identical period.

( 6 ) IN his affidavit-in-opposition, the appellant denied that his suit had been brought on the basis of the agreement and asserted that its basis was an independent agreement, dated 7-10-1950, which is the date of the statement of accounts. In the affidavit-in-reply, affirmed on behalf of the respondent-firm by one of its partners, a great many allegations were made against the appellant of which the following are relevant: -"with reference to para. 3 of the said affidavit, I deny that there was ever any accounts stated in writing between the petitioner and the respondent Sudhangsu Bhattacharyya or that a sum of Rs. 40,189-6-3 was found due thereon. I challenge the genuineness of the statement annexed to the plaint. The entries therein are also false. A sum of Rs. 15,000/- has been shown to have been paid on Studio account but no such payment was made. "it is unnecessary to refer to the further allegations which may be summed up by saying that the respondent-firm characterised the appellant's claim as "wholly false and fictitious" and which included a reference to a cheque for Rs. 15,000/-, said to have been issued by him and said to have been dishonoured.

( 7 ) SECTION 34, Indian Arbitration Act requires the Court to see,

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