A.N.Sen, J. - (1.) THIS is an application for stay of the suit under Section 34 of the Arbitration Act.
(2.) IT is the case of the petitioner that the petitioner had entered into a transaction with the respondent on the basis of an indent bearing No. W/2419 dated 29th June, 1982 for purchase of 12 Metric Tonnes Marg-O-Dark 'HC' as per sample at the rate of Rs. 1000/- per Metric Tonne on terms and conditions contained in the said indent. The said Indent contains an arbitration clause to the following effect :-- "Any dispute arising out of this indent shall be subject to the Bengal Chamber of Commerce and Industry's arbitration." According to the petitioner by a letter dated 5-9-62 the quantity mentioned in the said indent was amended and raised to 24 Metric Tonnes out of which delivery of 12 Metric Tonnes was to be immediate and of the balance 12 Metric Tonnes, as and when the same would be required. IT is the petitioner's further case that certain materials supplied by the respondent pursuant to the indent, did not conform to the samples and was duly rejected by the petitioner. The petitioner contends that in violation of the arbitration agreement the respondent has instituted this suit for recovery of the mm of Rs. 25,254/- as the price of the materials supplied and that the disputes and differences are completely covered by the arbitration agreement. The petitioner states that the petitioner has always been ready and willing to go to arbitration and prays for stay of this suit under Section 34 of the Arbitration Act. In the affidavit-in-opposition filed on behalf of the respondent the respondent does not dispute the indent or the terms and conditions contained therein. The respondent also does not deny that the materials were supplied pursuant to the Indent. The respondent denies that the materials supplied were not according to sample. It is the case of the respondent that the petitioner after having accepted the materials without any objection, wrongfully purported later on to reject the same on Frivolous grounds. The respondent denies that the disputes and differences between the parties are entirely covered by the arbitration agreement and it is the respondent's case that, in any event the claim in suit is not entirely covered by the arbitration agreement. The respondent in the affidavit also makes a case that the order was subsequently substituted by a Fresh order for delivery of 12 Metric Tonnes immediate and 12 Metric Tonnes as and when required and the price for the supply was increased at the rate of Rs. 80/- per Metric Ton. The respondent finally contends that in view of the inordinate delay on the part of the petitioner the respondent will be irreparably prejudiced if the suit is stayed and the claim of the respondent is likely to be barred.
(3.) MR. Sarkar, learned counsel for the petitioner has contended that the arbitration clause is very wide and completely covers the entire subject matter of the dispute in suit. MR. Sarkar has drawn my attention to the plaint filed herein. He has argued that although in the plaint, no reference is made to the said indent or the arbitration clause, it is quite clear from the bills annexed to the plaint and on the basis of which the claim in the suit is made, that the claim in the suit arises out of the indent. According to MR. Sarkar there is no reason why the suit should not be stayed.;