- (1.) This misc. appeal has been filed under Section 39 of the Indian Arbitration Act, 1950 against the order dated 14.11.1995 of the Civil Judge (Senior Division) Alwar in Civil Suit No. 47/94, whereby the application moved by the Defendant under Section 34 of the Indian Arbitration Act was allowed and the proceedings in the suit have been stayed.
(2.) Brief facts of the case are that a suit was instituted in the court of Civil Judge on behalf of the Plaintiff-Appellant (in short the Plaintiff-firm') for recovery of an amount in the sum of Rs. 40,737/- against the Defendants. The Plaintiff firm is a duly registered firm with the Registrar of Firms and Sarvashri Atul Jain, Pradeep Jain and Smt. Raj Rani Jain are the partners in the said firm. The Plaintiff firm is doing the business of transportation and the Defendant has engaged the Plaintiff firm for transportation of its goods through an agreement dated 12.2.1994. As per the said agreement, the transportation work was to be initiated with effect from 14.2.1994 and for each trip an amount of Rs. 1900 was fixed by the Defendant. The Defendant did not pay the due amount to the Plaintiff firm and for that a notice was given to the Defendant and consequently the Plaintiff firm has instituted the suit. After service of the summons, the Defendant appeared before the trail court and filed an application under Section 34 of the Indian Arbitration Act Tor staying the proceedings of the suit on account of existence of Clause 7 of arbitration agreement. It was submitted that as per Clause 7 of the said agreement any dispute arising out between the parties shall be decided by the Arbitrator and in view of Section 34 of the proceedings in the suit was sought to be stayed. After hearing both the parties the learned trial Court allowed the application filed by the Defendant. Against the said order dated 14.11.1995 of the Civil Judge (Senior Division) Alwar the Plaintiff firm preferred the instant appeal.
(3.) Mr. R.K. Mathur, Senior Advocate assisted by Mr. Aditya Mathur, contended that the trial Court has committed a serious illegality by staying the proceedings of the suit in view of Section 34 of the Arbitration Act. The learned Senior Advocate contended that Section 34 of the Arbitration Act are not attracted in the present case on the. ground that a power has been conferred upon the court to stay the legal proceedings where there is an arbitration agreement. He has further contended that as per the definition provided in Sub-section (i) of Section 2 of the Arbitration Act "written agreement to be submitted present or future differences of arbitration whether an arbitrator is named therein or not. In the instant case a bare perusal of Clause 7 of the arbitration agreement would reveal that it contains only the dispute arising out of the agreement and all questions related to interpretation of the agreement shall be referred to the Managing Director and the decision of Managing Director shall be final and binding to both the parties, this clause does not reflect that there was an arbitration agreement between the parties. He has further contended that there was no arbitration agreement between the parties. The agreement dated 12.2.1994 does not reflect any thing regarding existence of any arbitration agreement and in the absence of any arbitration agreement, the proceedings in the suit could not have been stayed. Mr. R.K. Mathur, Sr. Advocate placed reliance on Union of India v. Birla Cotton Spinning and Weaving Mills Ltd., 1967 AIR(SC) 688.;