NAGPUR GOLDEN TRANSPORT CO Vs. VIMAL TEXTILES

JUDGEMENT

(1.) This is an appeal by the defendant against the order of the learned Additional District Judge, No. 2, Jaipur City, Jaipur dtd. 1/9/1986.

(2.) The plaintiff -respondent filed a suit for the recovery of Rs.26,192.00 -against the appellant on 16/2/1985. The defendant was served with a notice to appear on 4/5/1985 and on that day he filed an application under Sec. 34 of the Arbitration Act for staying the proceedings. The learned Trial Court by the impugned order dismissed the stay application filed by the defendant.

(3.) I have heard learned Counsel for both the parties at length. It was contended by Mr. Keshote, learned Counsel for the appellant that the defendant sent a reply on 18/1/1985 to the notice sent by the plaintiff. In the reply it was mentioned by the defendant that the plaintiff should claim the liability against the Insurance Company and thereafter, should take any action against the appellant. It is submitted that after the aforesaid reply sent by the defendant the plaintiff did not resort to any action against the Insurance Company and directly filed the present suit on 16/2/1985. It is argued that the defendant at the first opportunity available to him took an objection under Sec. 34 of the Arbitration Act and also filed affidavits of the Manager of the defendant -company on 16/9/1985 and 18/2/1986 mentioning clearly in the last affidavit that the defendent company was always ready and willing to the appointment of arbitrator as contemplated in the agreement between the parties. It has thus been submitted that the defendant -appellant had never shown or raised any objection in the appointment of the arbitrator and the plaintiff before filing the suit never showed his intention of appointing any arbitrator in the case. In these circumstances, it is submitted that it should be inferred that the defendant -appellant was always ready and willing to the appointment of arbitrator in the present case.