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1992 Supreme(MP) 45
1992 JLJ 415
S.K. Jha, C.J.
(On difference of opinion between B.C. Varma and R.D. Shukla, JJ.)
Laxminarayan v. Food Corporation of India and another Misc. (First) Appeal No. 181 of 1988; against the order of Shri V.C. Agarwal, District Judge, Rajnandgaon, passed in Civil Suit No. 11-A of 1983; Decided on 27.1.1992.
R. Agarwal for appellant; S.C. Jain for respondents.
Headnote:(1) Arbitration Act, 1940 -- S. 34 -- term "taking any other steps in the proceedings" -- connotes the idea of doing something in aid of the progress of the suit -- submitting to the jurisdiction of the Court.
It is well settled that the term ‘taking any other steps in the proceedings‘ connotes the idea of doing something in aid of the progress of the suit or submitting to the jurisdiction of the Court for the purpose of adjudication of the merits of the controversy in the suit. AIR 1973 SC 2071 followed. [Para 5
(2) Civil P.C., 1908 -- S. 9 -- mere existence of an arbitration clause in agreement -- does not by itself operate as bar to suit in the Court -- right to institute suit for enforcement of civil right is inherent. [Para 5
(3) Arbitration Act, 1940 -- S. 34 -- summons of suit served with copy of the plaint and arbitration agreement -- defendant would be presumed to be acquiesced in and has waived his objection to jurisdiction of Court if he asks for time to file written statement. .
When a prayer for time was made on their behalf for filing a written-statement, it must be presumed that they were making a prayer for such time to set out the material facts which they wanted to plead and rely upon of their defence to the claim of the plaintiff/appellant. Can there be any doubt, then that the defendants/respondents were not conscious of the claim against them and of the defence that they would put forth by statement of material facts concisely in order to non-suit the appellant/plaintiff? Can it be said that they had not acquiesced in and waived their objection to the jurisdiction of the Court ? The answer to both the questions must be against the respondents/defendants. [Para 5
(4) Arbitration Act, 1940 -- S. 34 -- adjournment sought for filing written statement -- intention is clear to have the subject matter adjudicated upon by the Court -- defendant thereby disentitles himself to ask for stay of suit. AIR 1973 SC 207, 1982 JLJ 834 (SC) and AIR 1990 SC 893 followed. [Paras 7 & 8
¼1½ ek/;LFke~ vf/kfu;e] 1940 && /kkjk 34 && in **dk;Zokfg;ksa esa vU; dksbZ dne ysuk** && ldsr djrk gS okn dh izxfr dh lgk;rk esa dqN fd;k tkus ds Hkko dk && U;k;ky; dh vf/kdkfjrk dks ekuus dkA
;g lqLFkkfir gS fd in **dk;Zokfg;ksa esa vU; dksbZ dne mBkuk** okn dh izxfr dh lgk;rk esa dqN fd;k tkus dk vFkok okn ds lafookn ds xq.kkxq.k ds U;k;fu.kZ;u ds iz;kstu ls U;k;ky; dh vf/kdkfjrk dks ekuus ds Hkko dk ladsr djrk gSA , vkb vkj 1973 ,l lh 2071 vuqlfjrA ¿ iSjk 5À
¼2½ flfoy izfØ;k lafgrk] 1908 && /kkjk 9 && djkj esa ek/;LFke~ [kaM dk vfLrRo ek= && U;k;ky; esa okn ij otZu ds :i esa Lo;a izofrZr ugha gksxk && flfoy vf/kdkj ds izorZu ds fy, okn lafLFkr djus dk vf/kdkj varfufgZr gSA ¿ iSjk 5À
¼3½ ek/;LFke~ vf/kfu;e] 1940 && /kkjk 34 && okni= rFkk ek/;LFke~ djkj dh izfr ds LkkFk okn ds leu dh rkehy dh xbZ && izfroknh us U;k;ky; dh vf/kdkfjrk ij vk{ksi dk vf/kR;tu dj fn;k gS rFkk mlds fy, mier gS ,slh mi/kkj.kk dh tk,xh ;fn og fyf[kr dFku Qkby djus ds fy, le; ek¡xrk gSA
tc mudh vksj ls fyf[kr dFku Qkby djus ds fy, le; ds fy, izkFkZuk dh xbZ Fkh] ;g mi/kkj.kk dh tkuk gh pkfg, fd ,sls le; dh izkFkZuk og rkfRod rF; crkus ds fy, nh xbZ Fkh ftudk os oknh@vihykFkhZ ds nkos ds izfrokn ds fy, vfHkopu djuk rFkk voyac ysuk pkgrs FksA rc D;k blesa dksbZ D;k lansg jg tkrk gS fd] izfroknhx.k@izR;FkhZx.k dks muds fo#) nkos dk rFkk vihykFkhZ@oknh dks oknkolkfur djus ds fy, laf{kIr :i ls rkfRod rF;ksa ds dFku }kjk tks izfrokn os izLrqr djrs mldk Hkku ugha Fkk\ D;k ;g dgk tk ldrk gS fd mUgksusa U;k;ky; dh vf/kdkfjrk ds vk{ksi dk vfHkR;tu ugha fd;k rFkk mlds fy, mier ugha Fks\ nksuksa iz‘uksa dk mRrj izR;FkhZx.k@izfroknhx.k ds fo#) gh gksuk pkfg,A
¼4½ ek/;LFke~ vf/kfu;e] 1940 && /kkjk 34 && fyf[kr dFku Qkby djus ds fy, LFkxu pkgk x;k && fo"k;oLrq U;k;ky; }kjk U;k;fu.khZr djkus dk vk‘k; Li"V gS && mlds }kjk izfroknh okn jksds tkus dh ek¡x djus ds gd ls Lo;a dks oafpr dj ysrk gSA , vkb vkj 1973 ,l lh 207] 1982 ts ,y ts 834 ¼mPpre U;k-½ rFkk , vkb vkj 1990 ,l lh 893 vuqlfjrA ¿ iSjk 7 ,oa 8À
S.K. Jha, C.J. -- 1. On a difference of opinion between B.C. Varma, J. recorded on 13.2.1991 and that of R.D. Shukla, J. recorded on 24.6.91, the case has come up before me.
2. The question for determination in this appeal is as to whether the legal proceedings (the suit) be stayed and the matter for adjudication be referred to an arbitrator, by invoking the power of the Court under section 34 of the Arbitration Act, 1940 (hereinafter to be referred to as the Act), The Court below has directed that further proceedings in the suit be stayed and the dispute within the parties be referred to arbitration. The plaintiff preferred this appeal against the order of the trial Court. B. C. Varma, J. by his order dated 13.2.1991, was of the opinion that the appeal be allowed and the order dated 24.11.87 passed by the lower Court staying the proceedings in the suit be set aside and the application under S. 34 of the Act be rejected, and the trial Court should now proceed with the suit in accordance with law. R.D. Shukla, J. by his order dated 24.6:1991, on the contrary, has recorded that there being no conscious participation in the proceedings in the suit, mere request for filing the power and the written statement should not be deemed to be a step in the proceedings, and that, therefore, the appeal be dismissed.
3. Shorn of all details, the facts which are admitted and on the basis of which this appeal can be decided are these:
On 29.4.1983, the a plaintiff/appellant instituted the suit for recovery of Rs. 2,02,000/-. The appellant/plaintiff alleged in the plaint that there was no dispute between the parties as to the work done by the plaintiff; that there was no cause for defendants/respondents to withhold payment of the bills shown in Schedule A who never disputed the payment of those bills and the plaintiff was assured of such payment. The suit was registered as Civil Suit No. 11-A of 1983 in the Court of District Judge, Rajnandgaon. The suit having been so filed, summons were directed to be issued by the trial Court to the defendants. On 3.8.83, the defendants appeared after the writ of summons through Shri M.K Shrivastava, Advocate who filed his memo of appearance. The order dated 3.8.83 reads thus:
** oknh }kjk Jh ds-,u- Hkkj}kt vf/koDrkA izfroknhx.k }kjk Jh ,e-ds- JhokLro vf/koDrkA Jh JhokLro us izfroknhx.k dh vksj ls eseksa is"k fd;kA Jh JhokLro odkyrukek ,oa tokcnkok is"k djus gsrq le; fn, tkus dh izkFkZuk fd, tkus Lohdkj dh xbZA QS- rk- 6-9-83 okn∈ gsrqA**
4. On 6.9.83, Shri KN. Bhardwaj, appeared for the plaintiff. Shri M.K Shrivastava, filed his vakalatnama in due form on behalf of the defendants. Learned counsel for the defendant also filed a petition for time for filing an application under section 34 of the Act which was allowed; and 7.10.1983 was fixed for framing the issues. On 7.10.1983, the respondents filed an application praying for stay of the suit and for referring the matter to an arbitrator in accordance with the arbitration clause of the agreement. As had already been stated earlier, the learned District Judge allowed the application and stayed further proceedings in the suit. The plaintiff having appealed, Verma, J. held that the trial Court ought not to have allowed the prayer for stay of the suit whereas Shukla, J. held to the contrary.
5. On these facts, it has to be determined as to whether the defendants/respondents at any time before filing a written- statement or taking any other steps in the proceedings has applied to the Court for Staying the proceedings. It is well settled that the term 'taking any other steps in the proceedings' connotes the idea of doing something in aid of the progress of the suit or submitting to the jurisdiction of the Court for the purpose of adjudication of the merits of the controversy in the suit. The authorities on the point are legion. If any authority' be needed for the purpose, suffice it to refer to the case of State of U.P and another v. M/sJanki Saran Kailash Chandraan
