R.D.BHARDWAJ Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) This application under section 34 of the Arbitration Act (shortly called the Act) has been filed by the State of Himachal Pradesh, against whom, Shri R D. Bhardwaj has filed a suit for damages, declaration as also mandatory injunction to the effect that a decree for Rs. 20,4C00/ -on account of the damages, and for declaration that the plaintiff is the lawful owner of 2,730 resin tins, which are now stacked by him at his different depots within Kunihar Forest Division and that the action of seizing the property taken by the defendants is illegal, and he has further prayed by the suit for a decree for mandatory injunction directing the defendants not to carry the stacked 2,750 resin tins from the depots of the plaintiff to Bilaspur factary or any other place and to allow the plaintiff to export the same for sale in the open markets and also to direct the defendants to issue a transit permit in his favour without any delay.

(2.) The defendants filed this application for stay of the proceedings on the grounds that in the agreement dated 5th of February, 1975 between the parties in respect of Lot no. 7/75 in Kohoo Range within Kunihar Forest Division for extracting resin from the *chil trees there is an arbitration Clause no. 31 under which, in case of any dispute or difierence between the parties, the matter is to be referred to arbitration. But the plaintiff without taking resort to that forum has wrongly filed the suit in this Court, and, therefore, on that ground it is contended that the suit should be stayed and the matter be referred to arbitration. Further, it has been contended that the defendants have not taken any steps in the proceedings after appearance in the Court in the aforesaid suit.

(3.) In reply, it has been averred that this application under section 34 of the Act is not maintainable. The arbitration agreement; if any, was repudiated by the defendants. When a dispute had arisen between the parties, it was incumbent for the defendants to resort to arbitration proceedings, that the application is delayed and resort cannot be had to the arbitration proceedings. In fact the defendants are estopped from raising the plea of arbitration.