SATISH KUMAR Vs. B S KOMAL

JUDGEMENT

(1.) BY moving this application under Section 34 of the Arbitration Act, 1940 (hereinafter referred to as 'the Act'), a prayer has been made by the defendants/applicants for stay of proceedings in Civil Suit No. 51 of 1988. It is alleged in the application that the subject matter of the Civil Suit filed by the plaintiff/non-applicant arises out of the partnership deed containing an arbitration clause, which envisage that all disputes and differences, if any, amongst the partners, shall be referred to an Arbitrator, who may be appointed by mutual consent of partners. The further allegations are that the applicants are ready and willing to go in for arbitration in respect of the disputes alleged by the plaintiff or with respect to any other disputes arising out of the partnership, in accordance with the arbitration agreement, and that the defendants have not taken any steps in the proceedings and have prayed for stay of proceedings in the suit.

(2.) THE application is opposed by the plaintiff. THE preliminary objection raised is that the applicants have taken part in the suit by taking time to file written statement which estoppes them from moving the application praying for stay of the suit. THE other objection is that the arbitration clause in the agreement does not cover the dispute, which is the subject matter of suit. It is, however, not disputed by the plaintiff that the partnership deed was executed, which contains an arbitration clause.

(3.) EACH one of the applicants has filed his own affidavit in support of the averments made in the application, and in addition thereto reliance is also placed on the affidavit of Mr. Dharam Chand, Advocate dated 14/03/1989. The only affidavit in rebuttal is of Satish Kumar, plaintiff/non-applicant. I have heard the learned counsel for the parties and gone through the record. Issue No. I :