Sarjoo Prosad, C.J.—This is an appeal under sec. 39 of the Arbitration Act, 1940, and is directed against the order of the District Judge of Bikaner passed on the 13th of August, 1957.

2. It relates to a suit instituted by the respondent Bhojraj, a contractor in Bikaner, against the Union of India, the defendant and appellant before us, for recovery of a sum of Rs. 11,623/11/-, said to be due on the basis of certain contracts dated 29th October; 1954, and 12th November, 1954 The defendant before filing any written statement in the suit presented an application under sec. 34 of the Indian Arbitration Act alleging that the subject-matter in dispute in the said suit was covered by clause 24 of an Arbitration Agreement between the parties. The petition presented was not supported by any affidavit and only clause 24 of the Agreement in question has been quoted therein. The order sheet shows that various adjournments were obtained by the defendant for producing all the necessary documents, but the Arbitration Agreement itself was never produced at my stage, and the Court was left to speculate as to what the terms of the Arbitration Agreement were so as to cover the subject-matter of the suit. We will presently refer to clause 24 of the Arbitration Agreement as quoted in the defendants petition to see what meaning can be conveyed to the Court on the terms of the clause itself. On the presentation of the petition, the defendant claimed that it was ready and willing to appoint an arbitrator both before and after the suit, and, therefore, the proceeding in. question should be stayed in order to enable the parties to have the matter decided by an arbitrator nominated by the General Manager of the Railway Administration in terms of the said arbitration clause referred to in the petition. The plaintiff objected to the application for stay, and contended that the defendant had persistently neglected and disregarded any reference to arbitration even within the terms of the alleged arbitration clause. He pleaded that in consequence of the defendants attitude, it had become impossible for the plaintiff to wait indefinitely for the settlement of his claim, and was compelled to seek the assistance of the Court. The plaintiff, therefore, repudiated the version of the defendant that it was ready or willing to do every thing necessary for the proper conduct of the arbitration proceeding, either before or after the commencement of the suit. It was also pleaded by the plaintiff that there were certain claims which did not form the subject-matter of the Arbitration Agreement at all. He therefore, prayed that the application for stay of proceedings should be rejected. The objection petition of the plaintiff as distinguished from that of the defendant was duly supported by an affidavit also.

3. The Court below has rejected the stay application. The court found that although the plaintiff had as early as on 31st October, 1955, requested for appointment of an arbitrator, the defendant took no action thereon, and even after the notice under sec? 80 of the Code of Civil Procedure had been served on the defendant, the defendant took no steps in that regard, which clearly showed that the defendant was not willing before the commencement of the legal proceedings to appoint an arbitrator. In these circumstances the Court rejected the prayer for stay. In our opinion, the decision appears to be perfectly justified. I

4. Two questions arise in this appeal. Firstly, whether the defendant was ready and willing to do all things necessary for the proper conduct of arbitration within the meaning of the alleged clause 24 of the Arbitration Agreement both before and after the commencement of the legal proceeding; and secondly, whether the subject-matter in dispute in the suit itself fell within the terms of the Arbitration Agreement so as to justify a reference to arbitration. On both these points, in our opinion, the defendant has completely failed to satisfy the Court tha

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