RADHA KRISHAN MIRZA Vs. STATE OF J&K

JUDGEMENT

(1.) A suit for Rs. 34,333.69 was instituted by the plaintiff against the defendant, the State of Jammu and Kashmir, on 13 -5 -63 as arrears of some contract money due to him from the State. The suit came up before me on 31 -5 -63. On that day the learned Advocate General put in his appearance on behalf of the defendant, State of J. and K. It was directed that a copy of the plaint be furnished to the Advocate General in order to enable him to file his written statement for which he wanted one and a half monthâ„¢s time. When the written statement was not filed by the Advocate General on behalf of the State within the time granted, the case was again put up before me on, 6 -8 -63. On that day the learned Advocate General again made a request for further time to enable him to file his written statement. The case was adjourned to 29 -8 -62, giving him further time to file the written statement, as no objection to further adjournment was taken by the other side. On 8 -8 -63 the Advocate General on behalf of the State put in an application under S.34 of the Arbitration Act requesting this Court to stay the proceedings in the suit in terms of that section. Along with this application he filed a Power of Attorney on behalf of the State in his favour executed on the same date.

(2.) THE learned Advocate General has stated that the suit of the plaintiff cannot proceed because of the, arbitration clause in the agreement and the plaintiff is bound to get the case decided in terms of that clause by an arbitrator. The defendant was at the time when the suit was instituted and still remains ready and willing to do all things necessary to the proper conduct of the arbitration, and further there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement to the arbitration of the arbitrator. Mr. Bhan appearing for the plaintiff has stated that in the first place there is no arbitration clause in the agreement and secondly the defendant has lost that right because he took two adjournments for filing the written statement and because he had taken other steps in the proceedings before putting in his application under S.34 of the Arbitration Act (hereinafter to be mentioned as the Act in this order). Mr. Bhan has referred to the following authorities in support of his contention:

(3.) I shall first take up the point whether there is an arbitration clause in the agreement and whether the plaintiff can be bound in terms of that clause and other material on record to have been a party to an arbitration agreement. The clause referred to by the learned Advocate General is clause No. 21 of the agreement which is in the owing words: