( 1 ). M/s Bhartia Cutler Hammer Ltd. has filed a suit under the summary procedure of the Code of civil procedure for recovery of Rs. 2. 24. 895 - against AVN Tubes Limited. Plaintiff has based his claim on the basis of the outstanding bills amount not paid by the defendant. The defendant had placed an order on the plaintiff company for the supply of Thyristor drive and Motors (hereinafter called the equipment ). This order was placed vide letter dated 16th April, 1987 Plaintiff supplied the materials and equipments as per order which was accepted by the defendant. The equipment was installed and commissioned by the plaintiff on 22nd May, 1987, 7/9th July, 1987 and 22nd October, 1987 respectively. After the installation, the equipment is working satisfactorily. The defendant company was to furnish the sales-tax Form-C to the plaintiff company in order to get exemption for the sales-tax. Even that the defendant has failed to furnish. Therefore, the plaintiff will have to pay additional 6% CSI which they are entitled to recover from the defendant. The defendant has failed and neglected to pay the outstanding bills amount in spite of repeated reminders, hence this suit under Order XXXVII of the code of Civil Procedure.

( 2 ). NOTICE under Form-IV Schedule B of Order 37 was issued to the defendant. In response to which while entering appearance, the defendant has moved the present application under Section 34 of the Arbitration Act, inter alia pleading that in view of the arbitration clause in the agreement entered into by the parties, the suit is not maintainable. The letter dated 16th April, 1985, on the basis of which the order was placed by the defendant on the plaintiff, a concluded contract came into existence. The said letter dated 16th April, 1985 incorporated a clause No. 18 which is an arbitration Clause. In view of this arbitration clause the remedy with the plaintiff was to seek arbitration instead of filing a civil Suit. The defendant has always been ready and willing to apoint arbitrator.

( 3 ). THEREFORE, according to the defendant since disputes have arisen those are liable to be referred to an Arbitrator as per arbitration clause in the contract. Arbitrator is to be appointed by the defendant company as per Clause 18 of the Contract. On plaintiff raising the dispute defendant vide its letter dated 6th May, 1989 invoked the arbitration clause and informed the plaintiff accordingly. The defendant has referred the matter to arbitration for settlement of the disputes in accordance with the Clause 18. But the plaintiff for the first time has disputed the Arbitration of clause No. 18 and has in fact denied the said clause illegally and wrongly. The acceptance of the agreement dated 16th April, 1985 is not disputed by the plaintiff therefore the Arbitration clause 18 is deemed to have been admitted. Plaintiff is therefore estopped from denying the existence of the arbitration clause at this stage. An Arbitrator has already been appointed and he having entered upon reference, the plaintiff cannot choose not to appear before him and instead move an application under Sections 30 and 33 of the Arbitration Act seeking declaration that there does not exists any arbitration clause or that the said arbitration clause is invalid.

( 4 ). PLAINTIFF has repudiated these averments of the defendant inter alia on the grounds that even if it is presumed that there is an arbitration clause in the agreement dated 16th April, 1985, still that clause being unilateral cannot be enforced. Clause 18 give power only to the defendant for referring its disputes to arbitration. It denies the same right to the plaintiff, therefore, this clause 18 is bad in law and cannot be called an arbitration clause. Moreover the present dispute of the applicant does not fall in the scope of the arbitration agreement.

( 5 ). I have heard the learned counsel for the parties and perused the record. The short point for determination in this case is w