JAYANT MULCHAND SHAH Vs. ELSEN UND METALL AKTIENGESELLS

JUDGEMENT

(1.) The appellants herein are the plaintiffs in the Special Civil Suit No. 64 of 1982. The respondents herein are respectively defendant Nos. 1, 2, 3, 4 and 5 in the said suit. They are referred to as the plaintiffs and the defendants in this judgment. The plaintiffs have filed the aforesaid suit in the Court of the learned Civil Judge (S.D.), Kachchh at Bhuj for recovering the amount of freight they paid for transportation of 4,000 M. T. salt and for recovering damages representing mainly the value of the salt.

(2.) The defendant No. 2 gave an application Exh. 58 (also appearing as Exh. 53D in the typed copy of the order in question) for obtaining stay of the proceedings of the suit by virtue of Sec. 34 of the Arbitration Act, 1940 ("the Act" for short). The defendant No. 2 contended that it carried on the business as Sea Carrier and the Ship Owner. However, as per the case of the plaintiffs, the defendant No. 2 entered into an agreement with the first defendant to purchase the Vessel "M. V. Oba" and defendant No. 2 was at all the relevant point of time in control and management of the said vessel. According to the case of defendant No. 2, defendant Nos. 1, 3 and 5 were unnecessarily joined as parties to the suit with an ulterior motive with a view to prolonging the matter in dispute between the parties and with a view to get out of the ambit of the arbitration clause in the agreement between the plaintiffs and defendant No. 2 through its agent defendant No. 3. It is the case of defendant No. 2 that the vessel 'M. V. Oba' was placed at Kandla Port in seaworthy condition with all certificates valid for the purpose of loading the cargo and according to the plaintiffs' allegation, the cargo of salt was loaded. It is further the case of defendant No. 2 that after completing loading, it was the responsibility of the plaintiffs to pay the balance amount of freight and other dues in accordance with the respective clauses of the contract between the parties represented by fixure note. According to the defendant No. 2, the contract between the plaintiffs and defendant No. 2 was contained in the fixure note dated 5th December, 1981 and it contained clause 13 which reads as under :

(3.) According to the defendant No. 2, the entire suit was based on the fixure note dated 5th December, 1981 and that the defendant No. 2 was ever ready and willing to abide by the arbitration clause and to take all the necessary steps for the proper conduct of the arbitration under the said clause. Defendant No. 2 accordingly did not want to submit to the jurisdiction of the Court in the aforesaid suit and prayed for its stay under Sec. 34 of the Act.