HATHISANG KALYANSANG Vs. JASUBHA DANSANGJI

JUDGEMENT

(1.) THIS Civil Revision Application No. 802 of 1970 is Sled against the order dated 13th February 1970 rejecting the application dated 13 January 1970 filed by the defendant requesting the learned Civil Judge to refer the subject-matter of Civil Suit No. 19 of 1968 to arbitration in view of arbitration agreement dated 4th January 1970 entered into between the parties pending the suit.

(2.) CIVIL Suit No. 90 of 1968 was filed on 5th April 1968. Pending the suit the plaintiff and the defendant entered into arbitration agreement with regard to subject-matter of the suit on 4th January 1970. On 13th January 1970 the plaintiff filed application Exh. 25 along with arbitration agreement dated 4th January 1970 and requested the learned Judge to pass an order of reference according to the agreement. The defendant resisted the said application and inter alia contended that he did not agree to refer the matter to arbitration and therefore the order of reference should not be passed. The learned CIVIL Judge observed that in view of provisions of sec. 21 of the Arbitration Act 1940 in a pending suit the court can pass an order of reference only if all the parties interested agree to refer the subject-matter of the suit to arbitration and they apply in writing to the court for an order of reference. In the present case there was an arbitration agreement with regard to the subject-matter of the suit between the parties. But the application for passing order of reference was made by the plaintiff alone and the defendant opposed the said application. The defendant did not consent for passing order of reference. Therefore no order could be passed. The learned CIVIL Judge rejected the application by order dated 13th February 1970.

(3.) IN the result the revision application fails and Rule is discharged with costs.