ORDER :- This is an application for stay under S. 34 of the Indian Arbitration Act. The application is resisted on two grounds - (i) the applicant has taken steps in the proceedings and (ii) that the contract containing the arbitration clause has been modified by subsequent agreements to such extent that the arbitration clauses have become ineffective and that the arbitration agreement does not cover the disputes raised in the suit.

2. The suit is for the recovery of the sum of Rs. 2, 43, 804/13/4. The claim is under a contract for the distribution of a cinematograph film. The plaintiff is the Producer and the defendant No. 1 is the Distributor. The film proved to be very successful and had a long run in a large number of cinema houses. It is said that the box office receipt was very heavy. After giving credit for Rs. 10,000/- paid by the defendant No. 1 to the plaintiff there was due and owing to the plaintiff a large sum as claimed in the plaint. The defendant by his solicitors letter dated November 24, 1958 contended that the amount due to the plaintiff would not be as much as claimed but would be only Rs. 1, 01, 048.18. The disputes between the parties not having been settled the plaintiff instituted the instant suit on May 4, 1959 and immediately thereafter took out a Notice of Motion on May 6, 1959 for judgment on admission under Or. 12, R. 6 of the Civil Procedure Code for the sum of Rs. 1, 01, 048.18. The notice was served on the defendant No. 1 on the same day. On May 11, the Motion appeared as a New Motion in the List of Motions before the learned Interlocutory Judge when in the absence of the defendants the usual directions were given for filing affidavits. On May 13, 1959 Messrs. T. Banerji and Co. acting for the defendant No. 1 wrote a letter to the plaintiffs solicitor in the following terms :

"Messrs. S. C. Roy Chowdhury and Co.

Dear Sirs,

Sukumar Kumar

v.

Deluxe Film Distributors Ltd.

We have received instructions from Messrs. The Deluxe Film Distributors Ltd. the defendant abovenamed to act for them in the above suit.

Please send us a copy of the plaint free of charge on our usual undertaking to accept service of the writ of summons without such copy plaint.

Please also send us a copy of the grounds of the pending application on the usual terms.

We understand that the time to file the affidavit in opposition expires tomorrow. As we did not receive our clients instructions before for the affidavit in opposition we shall mention the application tomorrow before His Lordship the Honble Mr. Justice G. K. Mitter at the first sitting of the Court and ask for a short extension of time for filing our clients affidavit in opposition.

We trust you will consent.

Our Managing Clerk was informed that a copy of the Notice of Motion was sent to our clients office. As the said Notice of Motion is mislaid, we shall thank you to kindly send us a copy of the Notice of Motion also.

Yours faithfully,

Sd./ T. Banerji and Co."

3. It is clear from the above letter that even though up till now the defendants have not entered appearance and did not appear at the time when directions for affidavits were given on May 11, 1959, they kept themselves fully apprised of the proceedings in Court and know that "time to file affidavit-in-opposition expires tomorrow." In terms of the request contained in the letter, the plaintiffs solicitor gave consent to the defendant asking for extension of time for filing affidavit-in-opposition. What happened thereafter is stated in paragraph 22 of the affidavit of the plaintiff in the following words :

"On the following day that is 14th May, 1959 the petitioners solicitors after obtaining verbal consent from my solicitors mentioned and applied to the Court when the Court ordered that the affidavit-in-opposition should be filed by the petitioner by 19th May 1959, affidavit-in-reply should be filed by me by 23rd May 1959 and the Motion should stand adjourned till 25th May 1959. I crave reference to the relevant minutes

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