BANSIDHAR NARAYANJI Vs. E B SUKHIA

JUDGEMENT

(1.) THIS is a petition to Revise the decision of the Additional District Judge, Indore, reversing in appeal an order of the Additional City Civil Judge of Indore refusing to stay, under Section 34 of the Arbitration Act, a suit filed by the plaintiff applicant for recovery of damages on account of breach of contract. The learned Additional district Judge stayed the suit under Section 34, Arbitration Act, for a period of four months.

(2.) THE undisputed facts are that the suit was filed on 26th April, 1952. On 23rd june 1952 Mr. Patel filed his Vakalatnama on behalf of the defendant praying that as the defendant resided outside the State, further time may be granted for filing his reply. This prayer was allowed by the trial Court fixing 26th August, 1952, as the date for the filing of defendant's reply. On this date the defendant non-applicant presented an application under Section 34, Arbitration Act, for the stay of the suit stating chat one of the terms of the contract between the parties was that all matters, claims and disputes arising in respect of the terms and the conditions thereof, were to be settled by parties in Indore by reference to the sole arbitration of the Indian Motion Pictures Distributors' Association, Bombay, and that any award made by the arbitrator would be final and binding on the parties. The plaintiff opposed the stay of the suit. The trial Judge rejected the petition for the stay of the suit on the ground that the application was not made by the defendant 'before taking any step in the proceedings' and that the defendant's act on 23rd June, 1952, in asking for time to file his written statement amounted to his taking step in the proceedings.

(3.) MR. Patel, learned counsel for the non-applicant relying on Roop Kishore v. United Provinces Government, Lucknpw, AIR 1945 All 24 (D), submitted that an application for adjournment of a case to enable a defendant to file a written statement would not be a step in the proceedings within, the meaning of Section 34 of the Arbitration Act in every case and the question whether it did or did not amount to a step in the proceedings would depend on the facts and circumstances of each case. This is no doubt true. But, here there are on record no-facts and circumstances which negative the prima facie inference deducible from the order passed on 23rd June, 1952, granting time to the defendant to file a written statement, the learned Judges of the Allahabad High, Court in AIR 1945 All 24 (D ). themselves pointed cut that an application for adjournment of a case to tenable the defendant to file written statement would prima facie be treated as a step in the proceedings within the meaning of Section 34 of the Arbitration Act and the whole burden would rest upon the defendant to establish the circumstances leading to the result that effect should not be given to the prima facie meaning of the application, Learned counsel for the non-applicant was unable to point out such circumstances except that on the adjourned hearing the defendant in his application for stay under Section 34 of the Arbitration Act stated that on 23rd june, 1952, itself he intended to apply for the stay but that for some reason he could not do so. This is only a statement that the defendant had such intention and not a circumstance proving the intention.