GOKULCHAND Vs. BHONRILAL

JUDGEMENT

(1.) IN this appeal, the only question, which requires determination, is as to whether the defendant No. 3, who is the appellant before us, had taken any other step in the proceedings within the meaning of Section 34 of the Arbitration Act, 1940.

(2.) WE have carefully looked into the record of the case. The order-sheet of the Court of the Additional District Judge, No. 1, Jaipur City in the suit dated December 16, 1977, shows that copies of the plaint were delivered to the defendants Nos. 3 and 4 on that day and both the defendants Nos. 3 and 4 sought a long adjournment for filing their written-statements on the ground that the valuation of the suit was more than Rs. l,00,000/- and they wanted to look into the documents. The Court, therefore, with the consent of the counsel for the plaintiff, adjourned the case to February 4, 1978. On the last mentioned date, defendant No. 3 filed an application under Section 34 of the Arbitration Act praying that the proceedings in the suit be stayed, on the plea that the alleged agreement between the parties dated June 3, 1976, contained an arbitration clause. In para 3 of his reply to the application of the defendant No. 3, the plaintiff specifically stated on February 15, 1978, that on December 16, 1977, the defendant No. 3 had sought time for filing the written-statement and as such the application under Section 34 of the Arbitration Act was not maintainable. The defendant No. 3 filed a rejoinder dated March 15, 1978, in answer to the plaintiff's reply dated February 15, 1978 and the same was also supported by an affidavit. But neither in rejoinder dated March 15, 1978 nor in the affidavit filed by the appellant defendant No. 3 Gokulchand in support thereof, the averment made by the plaintiff in his reply dated February 15, 1978, that the appellant had sought time on December 16, 1977, for filing the written-statement was denied. On the other hand, defendant No. 3 generally averred that he appeared in the Court on December 16, 1977, and filed a vakalatnama and asked for a copy of the plaint, which was supplied to him and the case was fixed for February 4, 1978 for filing of the written-statement and, thus, 'legally speaking' February 4, 1978, was the date fixed for filing the written-statement. Here the defendant-appellant failed to state as to whether time was sought by him or not on December 18, 1977, for filing the written- statement and as to whether a long adjournment was given on that day by the trial Court for filing the written-statement at his instance or by itself or on the request of defendant No. 4 only as it is sought to be suggested now. The trial Court considered the conduct of defendant No. 3 in this respect and held that the same amounted to submission to the jurisdiction of the Court and was a step in furtherance of the progress of the suit. It was also held by the trial Court that in his application dated February 4, 1978, defendant No. 3 did not demonstrate his readiness and willingness to proceed with the arbitration. Consequently, the application for staying the proceedings in the suit under Section 34 of the Act was rejected by the learned Additional District Judge. No. 4, Jaipur City on March 20, 1979.

(3.) IT was argued by the learned counsel that the order-sheet dated December 16, 1977 did not represent the correct situation inasmuch as only defendant No. 4 sought adjournment for filing the written-statement and the mention in the said order-sheet that defendant No. 3 also made a prayer for filing the written-statement was introduced by inadvertence. This argument clearly appears to be an afterthought, inasmuch as neither in the application dated February 4, 1978 nor even in his rejoinder dated March 15, 1978, nor in the affidavit of defendant No. 3 filed along with the rejoinder, it was specifically mentioned that, he did not seek an adjournment for filing the written-statement on December 16. 1977 and the order-sheet did not present the true facts. The defendant-appellant did not explain his conduct even in his subsequent application dated March 15, 1978. We may also mention here that, as held by their Lordships of the Supreme Court in Bank of Bihar v. Mahabir Lal, AIR 1964 SC 377, if the defendant-appellant desired the statement made in the order sheet dated December 16, 1977 in this respect to be rebutted and if he desired to say that a thins mentioned in it did not happen, then it could only be challenged by him by pointing out the same in that very court, so that the court itself would have an opportunity to say as to whether the recital made in the order-sheet was correct, or erroneous. In the present case, it was only at the argument stage that a new plea was developed and was raised before the transferee court and it was alleged that the recital made in the order-sheet was incorrect. We fail to understand as to why the defendant-appellant did not raise this plea before the court which recorded the order-sheet dated December 16, 1977, so that the veracity of such a plea could have been testified by the same court. We, therefore, hold that the action of the defendant in seeking an adjournment for filing the written-statement in the facts, and circumstances of the present case constitutes a step in the proceedings, within the meaning of Section 34 of the Arbitration Act.