Salil K.Raychowdhury, J. - (1.) THIS appeal is against an order dated the 26th of November, 1976 passed by Salil K. Raychowdhury, J. by which he refused to grant stay on an application made under section 34 of the Indian Arbitration Act.
(2.) THE relevant facts are as follows: - On the 30th of August, 1972, the respondent No.2, Jain and Associates, placed an order with the appellant, Steel Plant Private Limited for purchase of an electric Arc Furnace at Rs.11,25,890/- with transformers and other accessories on terms and conditions specified in the order. THE order was accompanied by an initial advance of Rs.80,000/- with a request to send the formal contract in quaduplicate in confirmation of acceptance of the order and starting the work. By a letter dated the 8th of September, 1972 the appellant-petitioners granted the receipt for a sum of Rs.80,000/- and recorded that the order had been registered for delivery within thirty months. Formal acceptance was made on the 20th September, 1972. On the 7th of October, 1972 four copies of acceptance of the order dated the 20th of September, 1972 were forwarded by the appellant for signature of respondent No.2. In or about March, 1973 the respondent No.2 requested the appellant to transfer the contract for sale and purchase of the Arc Furnaces in the name of respondent No.1, Swastik Alloy Steel Limited. After some correspondence the respondent No.2 authorized transfer of the amount advanced in the name of respondent No.1 and thereafter the appellant in their books transferred the contract in the name of respondent No.1. On the 31st March, 1973 respondent No.2, paid a further sum of Rs.1,20,000/- by cheque at Calcutta to the appellant. In December, 1973, the respondent No.1 as required by the appellant, duly signed and forwarded to the former one of the four copies of the acceptance of the order dated the 20th of September, 1972 which had been sent to respondent No.2. In the said letter of 20th September, 1972 various terms of contracts were incorporated including the arbitration clause. It may be noted that one Jogendra Kumar Jain, a partner of the firm M/s. Jain, Associates, was also a Managing Director of the company Swastika Alloy Steel Limited. THE respondent No.1 by signing acceptance of the order agreed to abide by all the terms and conditions contained in the letter dated the 20th of September, 1972. THE condition contained in arbitration clause which is as follows:- "If at any time any question dispute or difference whatsoever shall arise between the purchaser and the seller upon any relation to or in connection with the contract, either of the party may give to the other notice in writing of the existing such questions, dispute or difference and the same shall be referred to arbitration in Bombay in accordance with the Indian Arbitration Act." It appears that on the 8th of August, 1973 the respondent No.1 paid a further sum of Rs.2,00,000/- by way of advance. THEreafter disputes arose between the parties as the appellants demanded an increase in the agreed price on account of rise of price by a further sum of Rs.1,02,000/- which the respondents did not agree to pay. On the 3rd of March, 1975 the respondent No.1 accepted repudiation of the contract the demanded refund of Rs.4,00,000/-. On the 14th of March, the respondents filed a suit (being No.34 of 1975) in this High Court against the appellant for committing breach of the contract and claiming, inter alia, decree for damages and for delivery up and cancellation of the order dated the 20th of September, 1972 and a refund of Rs.4,00,000/-. THE writ of summons was served on the appellant at Calcutta on 20th of April, 1975. THE time to file the written statement was to expire on the 11th of June, 1975. Explaining the delay the appellant stated that the appellants contacted their Solicitors at Bombay who after perusing all the paper advised the appellants in the early part of June, 1975 that the suit being filed in breach of the arbitration agreement the application for stay should be made. Thereafter the appellant contacted the Calcutta Solicitors, took their advice, obtained some papers from Bombay and filed an application for stay. On the 3rd of June, 1975 the appellant obtained an ad interim stay of the suit. After directions for affidavits, which were filed, the matter was adjourned on the 7th of August, 1975 and eventually after some adjournments the hearing was concluded on the 25th of November, 1976.
(3.) THE learned Judge held that there was a concluded contract between the parties which contained an arbitration clause as set out in paragraph 9 of the petition which has already been quoted above. THE learned Judge was not satisfied that the appellants were ready and willing to do all things necessary for arbitration either at the commencement or on the date of hearing of the suit. Secondly, the balance of convenience appeared to him to be in favour of the suit being proceeded with. THE learned Judge was also not satisfied with the explanation for delay in filing the application. He, therefore, rejected the petition.;