Appeal filed against order of dismissal of application for stay dismissed.

JUDGEMENT :- This is an appeal against the order in Appln. No.941 of 1980 in C.S. No.333 of 1978, dismissing the application for stay of the suit under S.34 of the Arbitration Act.

2. The summons in the suit was served on the defendant on 18-9-1979. The summons stated that if the defendant intended to defend the suit, he must cause an appearance to be entered on his behalf and file in the court a written statement stating the grounds of his defence 'within two weeks after service of this summons' upon the defendant in which case the suit will be entered in the general list of causes. The written statement should, therefore, have been filed on or before 2-10-79. The defendant neither entered appearance nor filed any written statement within the period prescribed under the summons, but it filed a vakalat in the suit along with Appln. No.941 of 1980 on 16-11-1979 praying for stay of the suit on the ground that there is an arbitration agreement between the parties in respect of the claim in the suit. The plaintiff resisted this application on two grounds: Firstly it was contended that the application should have been filed within two weeks of service of summons, that is, on or before the last date for filing the written statement and that its inaction in not filing the written statement will not extend the period of limitation. Secondly it was contended that under Cl. 9 of the contract, which is claimed to be the arbitration clause, and which reads 'any dispute arising out of this sale order will be referred to the Material Manager of the defendant-company', that in this case it is this Material Manager of the defendant-company who had rejected the claim of the plaintiff before the suit was filed and that, therefore, no useful purpose would be served by referring the matter for arbitration. The learned single Judge who heard the application held that the application has been filed beyond the period prescribed and that, therefore, the application is liable to be dismissed though he was willing to accept the contention of the defendant that they were ready and willing to have the dispute referred to arbitration.

3. Section 34 of the Arbitration Act reads as follows -

"Where any party to an arbitration agreement or any person claiming under him commences any legal proceedings against any other party to the agreement or 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 statement or taking any other steps in the proceedings, apply to the Judicial authority before which the proceedings are pending to stay the proceedings and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings."

4. The learned counsel for the appellant contended that the words 'at any time before the filing of a written statement' refer to the factual filing of a written statement and if the defendant had not taken 'any other step' in the proceeding it could file the application at any time before filing the written statement irrespective of the fact whether the application was filed before the time prescribed for filing the written statement. The learned counsel also contended that if the date before which he had to file the application is to be determined with reference to the date of filing the written statement fixed in the summons, the section could not be applied uniformly throughout the country as each of the courts have prescribed different times for filing the written statement. According to the learned counsel though this court in the summons normally fixes a period of two weeks from the date of service in filing the written statement, the