K. C. Agarwal, B. L. Yadav, JJ. - (1.) An application under section 33 of the Arbitration Act, challenging the existence of an agreement was made by the Plaintiff respondent, the United India Fire & General Insurance Co. Ltd., seeking a relief that there was no arbitration agreement entered into between itself and the Ballia Cold Storage, which was a partnership firm, carrying on business of cold storage at Ballia. The Insurance Company asseted that no agreement, formal or otherwise, had been entered into between itself and the Ballia Cold Storage. The filing of such an application was necessitated on account of the appointment of an arbitrator for Ballia Cold Storage for adjudicating upon the imagined dispute relating to the recovery of money under the Cover Note dated 21-6-1974. The Cold Storage alleged before the Arbitrator that it was entitled to receive certain sum of money mentioned in the claim petition. In order to got over the arbitration proceedings on the ground that no agreement of any type had been entered into, the application under section 33 of the Act was filed.
(2.) This application was allowed ex parte on 5-1-1976. Thereafter the Ballia Cold Storage moved an application for setting aside the said order, which was done on 26-1-1976. It was again decreed ex parte, which is being described as second time. Thereafter that order was also set aside. On the third occasion when the case was restored, the Cold Storage filed it written statement on 15-7-1978. The Court fixed 7-2-1979 for final hearing of the case. On that date the Cold Storage was heard. The Court took evidence of the United India Fire and General Insurance Company, and thereafter passed the order allowing the application on 7-2-1979. Thereafter the Cold Storage moved an application for setting aside the ex parte decree on the ground that the partner of the Cold Storage was ill on 7-2-1979 and as such he could not appear. A statement to that effect was made under paras 6 and 7 of the application. This application was contested by the Insurance Company and the facts stated in those two paragraphs were denied. It was also asserted that the partner of the Cold Storage could not have personal knowledge of the happening of the Court on 7-2-1979 which was sworn to that effect in the affidavit, when he was absent and was not present in the Court. The Court below having found the application made by the Ballia Cold Storage to be unbelievable, however, rejected the same. Against this order of rejection the present appeal under Order 43 Rule 1 (d) Civil Procedure Code. has been filed.
(3.) Having gone through the record, we are of the opinion that the application for setting aside the order is extremely vague and it is difficult to act upon the assertion made in the same by holding that sufficient cause for non-appearance had been made out by the Cold Storage on 2-2-1979. Neither the application does give the name of the illness, nor is supported by any medical evidence. These two facts were rightly taken into account by the court below for coming to the conclusion that no case exist for setting aside the order. The only argument advanced by Sri P. S. Tripathi in support of the appeal was that the court below committed an error in accepting the counter affidavit of the Insurance Company after the expiry of time, on account of which the Cold Storage was prejudiced, as it had no occasion to file a reply to the same The Court below has given adequate reasons for enlarging the time for filing the counter affidavit on behalf of the Insurance Company. To enlarge the time or not to do, so, is the matter of discretion and this Court in appeal cannot interfere with the same.;