The dismissal of a suit after the rejection of an application for stay under Section 34 of the Arbitration Act is not justified if the applicant failed to demonstrate their readiness and willingness to arbitrate at the commencement of the proceedings and at the date of the hearing.

Lokeshwar Prasad, J.

( 1 ) THE present petition, filed by the petitioner under Article 227 of the Constitution of India, is directed against an order dated the 2nd May, 1995, passed in Suit No. 193/94 - entitled M/s Draupdi Chit Fund Pvt. Ltd. v. Shri R. S. Chaudhary and Others, whereby the learned Civil Judge, while rejecting the application of the respondents, filed by them under Section 34 of the Arbitration Act, 1940 (hereinafter referred to as the Act ), also dismissed the suit filed by the petitioner/plaintiff.

( 2 ) THE facts relevant for the disposal of the present petition, briefly stated, are that the petitioner filed a suit for the recovery of Rs 30,956. 66 against respondents 2,3 and 4 in the Court of Senior Civil Judge, Delhi on 27. 6. 94, which was assigned to the Court of Shri V. K. Gupta, Civil Judge, Delhi for disposal according to law. In the said suit, before the learned Civil Judge, the respondents 2,3 and 4 filed an application under Section 34 of the Act read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC ) stating therein that the suit filed by the petitioner was not maintainable as not only an arbitration agreement was there but the Arbitrator had already, on 26. 8. 94 gave his award. The respondents in the abovesaid application prayed that in view of the above fact, the suit filed by the petitioner, be stayed/dismissed and the petitioner be directed to take action only under the provisions of the Act. The petitioner filed reply to the said application. The main thrust of the reply filed by the petitioner was that the award referred to by respondents 2,3 and 4 in the abovesaid application related to some other claim and not to the claim of the petitioner in the suit. The learned Civil Judge vide impugned order not only rejected the application of the respondents 2,3 and 4 but also dismissed the suit of the petitioner.

( 3 ) FEELING aggrieved the petitioner has filed the present petition. Notice of the petition was also given to respondents 2,3 and 4. However, no notice of the petition was given to respondent No. 1, who is a proforma party, and as such service of notice on respondent No. 1 was dispensed with by the learned Predecessor of this Court vide order dated 21. 11. 95.

( 4 ) I have heard the learned Counsel for the petitioner at length and have also carefully gone through the documents/material on record including the records received from the Trial Court. However, I could not have the benefit of the arguments of the learned Counsel for respondents 2, 3 and4 as none appeared on behalf of the above said respondent on 4. 11. 96 despite the fact that the case was called out twice i. e. earlier at its turn and later at the end of the list at 2. 30 p. m. on that date. The learned Counsel for the petitioner submitted that the learned Civil Judge was not justified in dismissing the suit filed by the petitioner as the award mentioned in the application filed by the respondents 2,3 and4 under Section 34 of the Act related to some other claim of the petitioner and not to the claim of the petitioner in the present proceedings. He further submitted that after rejecting the application, filed by respondents 2, 3 and4 under Section 34 of the Act, the learned Civil Judge was not justified in law in dismissing the suit filed by the petitioner and, therefore, the impugned order, in so far as the same relates to the dismissal of the suit is bad in law and, therefore, liable to be quashed.

( 5 ) AS already stated, respondents 2, 3 and4 filed an application under Section 34 of the Act. Section 34 of the Act reads as under :

"where any party to an arbitration agreement or any person claiming under him commences any legal proceedings against any other party to the agreement of any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statment or taking any other steps in the proc

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