RADHAKISSEN DHANUBA Vs. BOMBAY CO LTD

JUDGEMENT

(1.) In this case the defendants ask for stay of a suit pending in the Calcutta Court of Small Causes, in which the plaintiffs claim the sum of Rs. 92-8-0 as an allowance arising out of a written contract, which contains an agreement to refer all disputes to arbitration.

(2.) Section 89(1), Civil P.C. is as follows: Save in so far as is otherwise provided by the Indian Arbitration Act, 1899 or by any other law for the time being in force, all reference to arbitration whether by an order in a suit or otherwise, and all proceedings thereunder, shall be governed by the provisions contained in Schedule 2 and para. 18 of Schedule 2 provides that an application to stay a suit must be made to the Court at the earliest possible opportunity. It is clear that this para has been adapted from Section 19, Arbitration Act 1899, which itself was as clearly adapted from Section 4, English Arbitration Act 1889. The Para and Secs.are as follows: Para. 18 Where any party to any agreement to refer to arbitration or any person claiming under him, a statutes any suit against any other party to the agreement, or any person claiming under him, in respect of any matter agreed to be referred, any party to such suit; may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to the Court to stay the suit ; and the Court, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the agreement to refer to arbitration, and that the applicant 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, may make an order staying the suit. Section 19: Where any party to a submission to which, this Act applies or any person claiming under him, commences any legal proceedings against any other party to the submission, or any person claiming under him, in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time after appearance and before tiling a written statement or taking any other steps in the proceedings, apply to the Court to stay the proceedings ; and the Court, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceeding. Section 4: If any party to a submission, or any person claiming through or under him, commences any legal proceedings in any Court against any other party to the submission, or any parson claiming through or under him, in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance, and before delivering any pleadings or taking any other step in the proceedings, apply to that Court to stay the proceedings, and that Court or a Judge thereof, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was at the time when the proceedings wore commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings.

(3.) In the English Act the word "Court" is defined as meaning the High Court of Justice, unless the contrary intention appears and having regard to the words legal proceedings in any Court" and "apply to that Court" in Section 4, it is clear that it was intended that such applications under the English Act should be made to the Court of trial, and it has been so held. Thus "Court" in the section includes a County Court as was settled after some doubt in Morrison Tinplate Co. V/s. Brooker and Co. [1908] 1 K.B. 403, and Ors. cases. But it will be noticed immediately that these or similar words have been deliberately omitted from Section 19 by the draftsman of the Indian Act whereas " the Court" is defined in Section 4, Indian Act, as meaning in the presidency towns, the High Court and elsewhere, the Court of the District Judge. In para. 18, Schedule 2, Civil P.C., the distinctive words of the English section have been again omitted. But the Code contains no definition of the word "Court". Presumably, therefore, applications under para. 18 should be made to the Court of trial, as in England. Section 2, Indian Act, provides as follows: Subject to the provisions of Section 23, this Act shall apply only in cases where, if the subject matter submitted to arbitration wore the subject of a suit, the suit, could, whether with leave or otherwise, be instituted in a Presidency town.