ORDER :- This is an application to stay alt proceedings in Suit No. 1298 of 1954 pending in this Court between Bengal Corporation and W, Wood and Sons Ltd. The Notice of Motion was taken out by W. Wood and Sons Ltd. on 23-8-1954. The application is made under the Arbitration Act, 1940 and the Arbitration (Protocol and Convention) Act of 1937 as adapted.

2. The Arbitration Clause on the strength of which this application is sought to be made is in these terms :

"All questions of differences whatsoever which may at any time hereafter arise between the parties hereto or their respective representatives touching this agreement or the subject-matter thereof or arising out of or in relation thereto respectively and whether as to construction or otherwise, shall be referred to a single Arbitrator in accordance with and subject to the provisions of the Arbitration Acts 1889 to 1934 or any re-enactment or statutory modification thereof for the time being in force."

3. This Arbitration clause appears as Cl. 9 in the Agreement between W. Wood and Sons Ltd. and Bengal Corporation dated 19-10-1951 by which the Bengal Corporation agreed to purchase from W. Wood and Sons Ltd. expanding hinges, hatches and locks and suitcase components in sufficient quantities to enable the Corporation every year for a term of five years to construct at least 5,000 complete revelation suitcases.

4. This action is a commercial cause instituted in this Court on 30-4-1954 by the Bengal Corporation against W. Wood and Sons Ltd. for the recovery of the sum of Rs. 60,000/- as damages for breach of contract on the allegation that the goods supplied by W. Wood and Sons Ltd. were unfit for the purpose for which they were purchased and Were unmerchantable. There is also a plea, in the plaint for damages for breach of warranty, expressed or implied.

5. The subject-matter of this action certainly comes within the ambit and purview of the Arbitration clause. What is contended, however, is that there should be no stay of this action because of certain events which have taken place. 6. In so far as this is an application under S. 34 of the Arbitration Act, 1940 for stay of legal proceedings, it is incumbent upon the applicant to show that the applicant was at the time when the proceedings were commenced and still remains ready and willing to do all things necessary to the proper conduct of the Arbitration. It is contended on behalf of the respondent-plaintiff that the applicant has not been so ready and willing at all in the events that have happened.

7. It is, therefore, necessary to briefly set out the events. As early as 24-3-1953, the applicant wrote to the plaintiff that they had failed to carry out their obligations under the Agreement and, therefore, a demand was made to resort to Arbitration in England under the terms of Cl. 9 of the Agreement between the parties. A suggestion was made in that letter that both parties should agree to a single Arbitrator to be appointed by the President of the Law Society of England and Wales.

There was little response from the side of the plaintiff, with the result that the applicant approached the president of the Law Society who in the circumstances declined to act as a single Arbitrator unless the parties agreed. Persuasion was thereafter exercised by the applicant through the good offices of the Indian High Commission in London to induce the plaintiff to agree to Arbitration.

Such persuasion failed, one of the reasons for the failure being that the plaintiff claimed to go to Arbitration under the Indian Arbitration Act on the ground that an arbitration in England would be unhelpful, because all the defective components and parts were lying in Calcutta and it was necessary for Arbitrators to inspect them at site and make a decision. The applicant did not agree to come under the Indian Arbitration Act.

As will be seen from the Arbitration clause, the arbitration intended thereunder was obviously an arbitration under the English Acts as th

Click Here to Read the rest of this document