SHROFF BROTHERS Vs. BISHESWAR DAYAL MEATLE

JUDGEMENT

(1.) THIS is an application for stay of the Suit No. 2241 of 1969 (Bisheswar Daya) Meatle v. Shroff Brothers) and all proceedings thereunder under Section 34 of the Arbitration Act, 1940.

(2.) THE facts of the case briefly are: That the petitioner is a member of the Calcutta Stock Exchange Association Limited and carried on business as stock-broker and/or as a dealer in stocks and shares. During January to March, 1965 and January to August, 1966, the respondent entered into a series of transactions with the petitioner for purchases and sales of stocks subject to the rules and bye-laws of the Calcutta Stock Exchange Association Ltd. It is alleged in the plaint filed by the respondent that by the 31st of March, 1965 as a result of the said transactions between the parties a sum of Rs. 69,793/- became due and payable by the petitioner to the respondent. THE respondent further alleged that the petitioner by a letter dated the 5th of April, 1965 signed by Sawalram Shroff one of the partners of the petitioner made an acknowledgment of its liability to the respondent and a part of payment of Rupees 40,000/- demand draft of same date. It is alleged by the respondent that after crediting the said sum of Rupees 40,000/- a balance sum of Rupees 29,793/- became due and payable to the respondent by the petitioner in respect of the said transactions. THE said transactions terminated between the parties on the 31st of August. 1966. It is further alleged by the respondent in the plaint that on or about 31st of August, 1966 the petitioner made an acknowledgment in writing signed by the said Sawalram Shroff and made a part payment of Rs. 11,092.50 p. to one Messrs. Bhagwandas Gupta on the respondent's instructions for and on behalf of the respondent and admitted the existence of an account in relation to the said transactions between the parties and submitted a purported statement of account falsely alleging that nothing was due to the respondent by the petitioner. It is further alleged by the respondent that the said purported account contained fraudulent entry of alleged payment of Rs. 500/- in cash and omission of the said sum of Rs. 29,793/- due to the respondent by the petitioner in the said account. THE respondent alleges in the plaint that he has not accepted the said account of the petitioner. Finally in the plaint the respondent after crediting the said amount of payment made by the petitioner on or about 31st of August, 1966 being the said sum of Rupees 11,092.50 claimed a sum of Rs. 30,293/- being the balance amount due in the said account relating to the said share transactions between the parties together with interest thereon at the rate of 12% per annum. THE respondent further alleged that a notice in writing dated the 2nd of August, 1969 demanding the said sum with interest thereon at the rate of 12% per annum was duly given to the petitioner. As the petitioner failed to pay the said amount as demanded by the respondent, the Suit No. 2241 of 1969 (Bisheswar Dayal Meatle v. Shroff Brothers) was filed in this Court in August, 1969. THE Writ of summons of the said suit No. 2241 of 1969 was admittedly served on the petitioner along with a copy of the plaint on the 19th of November, 1969. THErefore under Chapter VIII, Rule 5 of the Original Side Rules of this Court time to file written statement in this case was 28 days from the date of service of the Writ of summons that is upto 16th of December, 1969. In this case it is quite clear that the petitioner also did not enter appearance before the date fixed for its appearance in the said Writ of Summons on it under Chapter VIII, Rule 15 of the Original Side Rules. It further appears that the present application for stay of the suit under Section 34 of the Arbitration Act, 1940 was filed in this Court on the 6th of March, 1970 and an ad interim stay of the suit was obtained on the same date.

(3.) MR. S.K. Kapoor appearing for the petitioner submitted that all the conditions under Section 34 of the Arbitration Act, 1940 have been satisfied as the subject-matter of the suit is covered by the arbitration clause contained under the rules and bye-laws of the Calcutta Stock Exchange Association Ltd. admittedly which governs the contract between the parties. Therefore, MR. Kapoor submitted that there is no sufficient cause why the suit should not be stayed. MR. Kapoor in reply to my question as to why the matter has not been heard for such a long time of about 4 years submitted that the petitioner has got nothing to do with the hearing of this application as no court took up the matter for disposal. I must say I cannot accept the said contention at least from the period it was mentioned before me it must have been adjourned with the consent of both the parties or one of the parties was not present in the court when the matter was called on in the list. It further appears that the matter was adjourned from time to time with the consent of the parties. Further to my question as to why the petitioner has not referred the matter to arbitration after getting the suit stayed as far back on the 6th of March, 1970, MR. Kapoor's answer was that the petitioner has no claim against the respondent as such there was nothing to refer to arbitration by the petitioner. In my view, such answer is not at all convincing but gives me the impression that the whole object of the petitioner is to gain time and delay the adjudication of the disputes between the parties either by arbitration or by suit. MR. Kapoor submitted that in the plaint it is admitted by the respondent that the contract was subject to the Rules and bye-laws of the Calcutta Stock Exchange Association Ltd. which contained the arbitration clause and as such in the facts and circumstances of this case the suit must be stayed and the interim stay must be confirmed.