PRADEEP NANDRAJOG, J.

( 1 ) WE had concluded the hearing in the matter on 17th February, 2003. It was indicated to the counsel for the parties that should they wish, written synopsis along with further list of authorities, if any relied upon, other than the authorities cited during oral arguments, should be filed on or before 21st february, 2003. On 21st February, 2003 mention was made on behalf of the respondent that due to persona! reasons,counsel for the respondent was unable to file the written synopsis. Time was sought and was granted up to 26th February, 2003 to do the needful. Counsel for the appellant has submitted a further list of authorities relied upon. Neither any written synopsis have been filed by the respondent nor any further list of authorities have been filed. We are consequently proceeding ahead with out judgment.

( 2 ) AGGRIEVED by the order dated 30th July, 2001 allowing IA. NO. 6727 /96 filed under section 34 of the Arbitration Act, 1940 read with Section 8 of the Arbitration and Conciliation ordinance, 1996, and as a consequence staying the suit filed by the appellant under order XXXVII of the Code of Civil Procedure, the present appeal has been filed. Two grounds have been urged in support of the appeal by Mr. Sanjiy Khanna, learned counsel for the appellant. It is firstly contended that the application under Section 34 of the arbitration Act filed by the respondent was not maintainable as according to the learned counsel for the appellant, in a suit filed under order XXXVII of the Code of Civil Procedure, filing of an application under Section 34 beyond the stipulated period for the defendant to enter appearance, would defeat the scheme of the provisions of Order XXXVII of the Code of Civil Procedure. Contention raised was that if the defendant does not enter appearance within the stipulated period of of ten days prescribed under Order XXXVII, consequence provided by sub-rule (3) of rule 2 follow and the plaintiff would become entitled to a decree since the allegations in the plaint shall be deemed to be admitted. The second argument addressed was that in the facts and circumstances of the present case, the arbitration clause as contained in the original agreements between the parties was not attracted.

( 3 ) THE response of Shri V. B. Arya, Advocate on behalf of the respondent was that the arbitration Act, 1940 is a special Act dealing with matters pertaining to arbitration and, therefore, neither the rigors of the procedure under Order XXXVII, nor the limitations prescribed therein could apply to an application under Section 34 of the Arbitration Act. Learned counsel thus argued that an application under Section 34 of the Arbitration act could be field in a suit under Order XXXVII till as long as no decree was passed in the suit. To the second submission, Shri V. B. Arya, learned counsel for the respondent contended that origin of the dispute between the parties was to be found in the original agreements between the parties, which contained an arbitration clause, and hence not only was the application under Section 34 of the arbitration Act maintainable but suit was even liable to be stayed as was done under the impugned order.

( 4 ) TO appreciate the rival submission, the facts may be noted. The appellant had filed a suit under Order XXXVII of the Code of Civil procedure for recovery of Rs. 27,55,567/- together with interest and costs. As per the averments made in the suit, the appellant had a Russian buyer to whom the appellant had to supply 355 MT of Indian black pepper grade MGI. The respondent agreed to supply to the appellant the said quantity of black pepper, meeting the specifications desired by the appellant. Two written contracts dated 5th March, 1993 and 12th March, 1993 were executed. Under the two contracts, the respondent agreed to supply 250 MT 1 5% and 105 MT 1 5% black pepper, respectively, at a price of Rs. 31,000/- per MT FOB Cochi. Specifications of the black pepper were provided

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