( 1 ) THIS is an appeal by the defendant in civil suit No. 2-B of 1958 against the order made by the First Additional District Judge, Raipur on 30-1-1964 dismissing its application for staying the trial of the suit under Section 34 of the Arbitration Act.

( 2 ) THE principal question in the appeal is whether the document dated 26-9-1957 establishes a new contract between the parties superseding the previous contracts dated 28-5-1957 between them.

( 3 ) THE plaintiff averred in the plaint that the two previous contracts between the parties were settled on 26-9-1957 and replaced by a new contract, and the defendant agreed to supply cloth on the terms contained in the new contract. The plaintiff also urged in the plaint that the defendant agreed to pay compensation in respect of 54 bales of cloth which were not supplied under the previous contracts. The suit is for the recovery of damages for breach of the contract dated 26-91957.

( 4 ) THE contention of the defendant is that on 28-5-1957 the parties had entered into two contracts under which the defendant agreed to supply cloth to the plaintiff. Both the contracts contained an arbitration Clause (clause 21) to the following effect:--"all disputes and questions whatsoever which shall arise between the parties hereto out of or in connection with this agreement or as to the construction or application thereof or the respective rights and obligations of the parties hereunder or as to any clause or things herein contained, or any amount or valuation to be made hereunder or as to any other matter in any way relating to these presents, shall be referred to arbitration in accordance with the rules of the Millowners' Association, bombay, for the time being in force regulating arbitration with respect to piece goods. ' the defendant denies that the said contracts were replaced by a new contract. He has explained that all that took place was to alter the time and mode of delivery leaving the original contracts intact in all other respects. The defendant claimed that the plaintiff was bound to have recourse to the arbitration under Clause 21, referred to above, and therefore prayed for stay of the suit.

( 5 ) THE plaintiff, in his reply, admitted the earlier contracts pleaded by the defendant, but urged that those contracts have been completely substituted by the new contract dated 26-9-1957. He urged that as the new contract did not contain any arbitration clause, the dispute between the parties could not be referred to arbitration under Clause 21 of the previous contracts and therefore there was no question of the plaintiff's suit being stayed under Section 34 of the Arbitration Act.

( 6 ) THE trial Court rejected the application under Section 34 on 25-3-1960. The defendant came up in appeal to this Court. The appeal was allowed on 14-12-1960 and the order of the trial Court refusing stay was set aside and the case was sent equivalent Citation: back to the trial Court to decide whether the original contracts were discharged by substitution of a new contract as alleged by the plaintiff. It was further directed that for deciding this question, the Court may take into account the allegations in the plaint, the application for stay and its reply, the documents filed by the parties and any affidavits that may be filed by the parties in support of their respective claims and the said order finally directed that if the Court found that the original contracts have not been discharged, the suit shall be stayed under Section 34 of the Act, Otherwise the suit shall be allowed to proceed. The order passed by the division Bench is reported in Mathura Prasad v. Permanand, 1960 MPLJ 421 (Sic-Reference to Century Spg. and Mfg. Co. Ltd. v. Motilal, 1961 M P L T 421: (AIR 1961 madh-Pra. 333 is intended-Ed.) ( 7 ) WHEN the case went back to the trial Court, it permitted certain amendments in the plaint and framed certain additional issues in relation to them. The defendant felt aggrieved by the