Decided on September 08,1995

M/S. Construction India Appellant
M/S. Nighingale Co Respondents


N.G. Nandi, J. - (1.)In the suit under Order 37 of the Code of Civil Procedure, seeking a money decree for Rs. 9,05,550.00 with costs and further interest @ 18% p.a. on the allegations that the defendant failed to pay Rs. 8.00 lakhs pursuant to the settlement dated 28-8-1988 payable in three instalments on 30-9-1988, 15-11-1988 and 13-12-1988, defendant has taken out these three applications.
(2.)As stated above, the plaintiff filed the suit under Order 37 Rule 2 CPC, claiming money decree, as afore stated, from the defendant. In response to the notice to appear, under Order 37 Rule 2 (3) CPC, the defendant appeared on 31-10-1990 and thereafter, the matter was adjourned from time to time for filing reply. Thereafter, summons for judgment under Rule 3(4) was taken out by plaintiff and served upon the defendant. The defendant, on 6-1-1993, took out IA 14208/92 U/O 37 R 3(5) and Sec. 34 Arbitration Act, to which the plaintiff filed his reply. In the mean time, the defendant also took out lAs 2426/94,2427/94 & 2428/94.
(3.)By IA 2426/94, the prayer is that combined IA 14208/92 U/O 37 Civil P.C. and U/S 34 Arbitration Act be split/separated and defendant be permitted to file two separate applications, one under Order 37 Rule 3(5) Civil P.C. and the another under Sec. 34 of the Arbitration Act. Vide IA No. 2427/94 prayer is U/R 3 (5) Order 37 Civil P.C. vide IA 2428/94, the prayer is to stay the suit under Sec. 34 of the Arbitration Act." It is not disputed that in IA 14208/92 there is no averment for ready and willingness of the defendant to go to the arbitration. It is also not in dispute that the prayer in this IA is for unconditional leave to defend the suit under Rule 3 (5) Order 37 CPC. In IA 14208/92 it has been mentioned to suggest that this is an application under Order 37 Rule 3 read with Sec. 151 Civil P.C. and Sec. 34 of the Arbitration Act. Thus, at the beginning of the IA, it is mentioned that it is a combined application under Rule 3 Order 37 Civil P.C. and Sec. 34 of the Arbitration Act which application is sought to be split/separated into two vide IA 2426/94 and then IA 2428/94 under Sec. 34 of the Arbitration Act and IA No. 2427/94 have been filed.

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