STATE OF U P Vs. HARSH SINGH KANYAL

JUDGEMENT

(1.) THIS appeal is directed against an order passed by the Court below refusing to stay the proceedings under Section 34 of the Arbitration Act commenced by the plaintiff-respondent by way of a suit against the appellant for recovery of the sum of Rs. 22,000/-. The Court below has rejected the application filed by the appellant under Section 34 of the Arbitration Act on the ground that in the first place the appellant has not filed the original agreement which is stated to have contained an arbitration agreement and secondly that it was not satisfied that the appellant was ready and willing to do all things necessary to the proper conduct of the arbitration at the time when the proceedings i n t he suit we.re commenced or even thereafter when the application under Section 34 of the Act was moved.

(2.) THE relevant facts are that the plaintiff was given a contract by the defendant for the excavation of hill site for the construction of a Motor Road in the District of Pithoragarh. According to the plaintiff, it completed the work in compliance with the orders placed by the appellant. However, the Executive Engineer (P.W.D.) Construction Division, Askote illegally withheld a sum of Rs. 28,840/-which was stated to be due to him under the contract. THE plaint iff demanded the amount from the appellant (defendant) on several occasions and lastly on 23-7-1981 when a notice under Section 80 C.P.C. was served on the defendant-appellant, but to no avail. "THEreafter, on 20th Dec., 1983, the plaintiff filed the present suit for recovery of Rs. 22,000/- against the defendant-appellant together with interest pendente lite and future at the rate of Rs. 12 per cent per annum.

(3.) THIS application was contested by the plaintiff-respondent, who asserted that the appellant has by his conduct clearly indicated that he was not ready and willing to have the matter referred for arbitration, both at the time of the commencement of the proceedings as welt as even now and consequently the suit should not be stayed. The Court below agreed with the plaintiffs contention and has rejected the defendant-appellant's aplication.