P.C.Mallick, J. - (1.) THIS is an application for stay of a suit under Section 34 of the Indian Arbitration Act. It is not disputed that the disputes in suit are covered by the arbitration clause in the contract subsisting between the parties. In fact such disputes have already been referred to arbitration in terms of the arbitration clause. The contention of the respondent is that the petitioner has taken step in the suit and in consequence the suit is not liable to be stayed. The facts relevant to the determination of the question may now be shortly stated. The suit was instituted on December 23, 1964. On the same date the plaintiff took out a notice of motion and obtained an interim injunction. The notice was returnable on January 4, 1965. What happened on January 1, 1965 when the motion was called will appear from paragraph 4 of the affidavit of Sunil Kumar Mitra which reads as follows: "On January 1, 1965 the injunction and Receiver matter appeared as 'New Motion' before the Hon'ble Mr. Justice S.P. Mitra. When the matter was called on Mr. B.N. Sen counsel for the respondent instructed by me as the Solicitor for the respondent firm (the same set of counsel and Solicitor as representing the said respondent firm in the Award Case No. 23 of 1964), placed the facts before the Court and drew attention of the Court to the relevant paragraphs of the petition and asked for additional interim orders including order for injunction in respect of the petitioner's Motor Car being No. WBC 3875 and the undivided interests of the petitioner in the Jodhpur House and also for inventory of the goods in re.spect of which the order for injunction has already been made. Md. Taller Ali Advocate instructed by Mr. R.N. Mullick Solicitor (who were the Advocate and Solicitor respectively for the petitioner in the Award Case No. 23 ot 1964) appeared for the petitioner herein and opposed each of the said prayers. In spite thereof an order was made as follows: Mr. B.N. Sen counsel for the petitioner submits, Md. Taher Ali counsel for the respondent submits. The Court--Ailidavil in opposition by 11-1-1965, Affidavit in Reply by 18-1-1965 and the Motion is adjourned till 19-1-1965. The injunction is extended to the Motor Car and house at Jodhpur in terms of the Clause (4) of the Notice of Motion. I was throughout present in Court when the above submissions were made and order was passed."
(2.) TWO days prior on the 2nd January, 1965 the Solicitor of the petitioner wrote a letter stating that he has received instructions from the petitioner to enter appearance and defend the suit on his behalf and asked for a copy of the petition and also a copy of the plaint. Correct copy of the plaint was sent on the 7th day of January. It may be noted that a day before an incomplete copy of the plaint was sent but very properly it was returned back. On 9th of January, 1965 the defendant entered appearance and intimated this fact to the plaintiffs Solicitor. It is clear from the above facts that the defendant and/or his attorney did the following acts of and relating to the suit- (1) Appeared by counsel in Court on the 4th January, 1965 when the new motion was called on. He opposed the application for extension of injunction. The time for filing atlidavit in opposition was extended by this order. Under the rules the time within which affidavit in opposition was to be filed is two days from the date of service. The last date of filing affidavit in opposition having expired, an extension was granted by the Court by this order. It is not clear from the affidavit or the minutes whether the defendant's counsel actually asked for such extension. It is contended, however, that the Court never grants extension unless it is asked by the defaulting party. 2. The defendant entered appearance and his Solicitor intimated to the plaintiffs Solicitor that he has received instructions to contest the suit.
(3.) THE question for consideration is whether the acts noted above amount to taking step in the suit so as to debar the defendant from obtain ing a stay of the suit under Section 34 of the Indian Arbitration Act. Taking the second ground first. In my view entering appearance and intimating the plaintiff's Solicitor that he has received instruction to contest the suit does not amount to taking step in the proceeding and the defendant is not debarred from making this application for stay either because of having entered appearance or because of his solicitor intimating to the plain tiff's Solicitor that he has received instruction to enter appearance and to defend the suit.;