M/S BILLARPUR INDUSTRIES LIMITED, YAMUNANAGAR Vs. HARYANA STATE ELECTRICITY BOARD, CHANDIGARH THROUGH ITS CHAIRMAN AND OTHERS

JUDGEMENT

(1.) THE revision petition is directed against order dated February 16, 1987, passed by the Additional District Judge, Ambala, whereby the appeal filed by the defendants was accepted and order of the trial Court declining to stay the proceedings of the suit under Section 34 of the Arbitration Act was set aside.

(2.) MESSRS Billarpur Industries Limited, Yamunanagar, is consuming electricity by connection/Account Nos. A/411 and A/412. For the last 50 years the plaintiff -Company has been using electricity and paying for the same. Because of often breakdown in the electricity supply, they installed a generating set. The employees of the defendants -Electricity Board visited the premises of the plaintiff and reported that the plaintiff was using excess power that of the contract demand -Vide memorandum dated May 24, 1983, the plaintiff -company was asked to pay penalty of Rs. 5,80,077.70 paise. This has been challenged in the suit. On behalf of the defendants, an application under section 34 of the Arbitration Act was filed to stay the suit and to refer the dispute to the Arbitrator as mentioned in clause 29 of the agreement entered into between the parties. Shri Harbhagwan Singh, learned counsel for the petitioner has argued that the defendants having participated in the proceedings of the suit and taken steps in the progress of the suit, were debarred from filing application under section 34 of the Arbitration Act for staying the suit. This contention in the facts and circumstances of the present case cannot be accepted. The suit was fixed for November 21, 1983. On that date, Shri Balwant Singh, counsel for the defendants, put in appearance and the following order was passed:

(3.) THE mere fact that the defendants approached the Court at the initial stage for staying the suit and to refer the dispute to the Arbitrator mentioned in the agreement, the Court is not bound to act accordingly. A discretion is vested in the Court to pass appropriate order taking into consideration the facts and circumstances of the case. Exhibit A -3 is the agreement containing clause 29 which is reproduced below: -