K.C.AGRAWAL, J. - (1.) THIS is an appeal under S.39(1)(v) of the Arbitration Act against the judgment of the First Additional Civil Judge, Kanpur, dt. 17-9-1984, rejecting the application of the appellants for stay of the Suit No. 161 of 1980, moved under S.34 of the said Act.
(2.) SUIT No. 161 of 1980 was filed by the Allahabad Bank against defendants 1 to 4. Defendant 2 is the sole proprietor of defendant 1 firm M/s. Jamunadas Rameshwardas, whereas defendant 4 Smt. Sushila Devi Bajaj is the proprietor of defendant 3 Hotel Sarika. She is the wife of defendant 2. The plaintiff claimed a decree for Rs. 3,78,018.70 Paise against defendants 1 and 2 with interest and for recovery of Rs. 5,39,284.04 Paise against defendants 2, 3 and 4. The basis of the claim was that defendants 1 and 2 had to pay the amount claimed against them on the ground of having taken advance from the Bank. With regard to defendants 3 and 4, the plaintiff pleaded that defendant 2 had guaranteed the dues of defendants 3 and 4. Accordingly, defendants 1 and 2 are liable to pay along with defendants 3 and 4, and, therefore, a joint decree for the amount due from defendants 3 and 4 was claimed as against defendant 2. After the service of summons, defendants 1 and 2 moved an application for stay of the suit under S.34 of the Arbitration Act on the ground that there was since an agreement between the plaintiff and the aforesaid two defendants, the suit was liable to be stayed. The application was not supported by any affidavit. Time and again, defendants 1 and 2 were given opportunity to file affidavit in support of this application. However, no affidavit having been filed, the application was rejected on 6-8-1982 by the learned Additional Civil Judge by observing that since the defendants had not filed any affidavit in support of their contention despite the order of the Court, the application had no force and was liable to be rejected. An application under S.34 of the Arbitration Act is required to be supported by an affidavit for showing 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, and showing that the dispute is one which the parties have agreed to refer.
(3.) DEFENDANT 2, thereafter, moved another application dt. 15-9-1982 with the same prayer of stay which had been made by them earlier. This time the application was supported by an affidavit. The application was contested by the Allahabad Bank, and the ground taken, amongst others, was that there was no arbitration agreement between the parties. The court below rejected the application by the impugned order dt. 17-9-1984 by holding that there was no arbitration agreement between the parties for deciding the dispute through arbitration. Against this judgment, the present appeal has been filed.;