- (1.) THESE four appeals involve similar question of law and therefore, are being disposed of by this common judgment.
(2.) ADVERTING to the facts of S. B. Civil Misc. Appeal No. 477/1989. Plaintiff-appellant is a Public Limited Company registered under the Companies Act, 1882 and has got factories at Kota and utilising electricity for running its factories. The plaintiff entered into separate agreements with the defendant-respondent. The defendant issued a notification dt. 6-3-1982 by which the tariff for the supply of electricity was amended with effect from 1-3-1982. The defendant sent a bill to the plaintiff, at the revised rates, starting from 1-3-1982. Plaintiff-appellant made payment of the said bill under protest and made several representations and written several letters to the defendant, asserting that the new tariff could be held to be applicable only from 6-3-1982 and not retrospectively from 1-3-1982 and that the plaintiff was not liable to pay electricity charges at the enhanced tariff for the period 1-3-1982 to 5-3-1982, therefore, the said amount should be refunded. The defendant-respondent neither replied to the communications nor refunded the amount. Hence, a registered notice was sent to the defendant, through counsel, requesting to refund the said amount. It was specifically mentioned in the notice that though the subject of refund is not at all covered under any agreement between the Board and the plaintiff, but still, the plaintiff has no objection if the matter could be solved by arbitration, provided a reply is received within seven days, failing which a suit shall be filed by the plaintiff against the Board, in the court. But the Board in spite of several verbal requests and the legal notice through counsel did not refund the amount nor even replied to the notice, therefore, the plaintiff had no other alternative but to file a civil suit on 25-4-1985 for recovery of the said amount. The respondent defendant submitted an application u/s. 34 of the Arbitration Act, 1940, alleging that the matter is covered by Clause 30 of the agreement, which envisages arbitration between the parties and requested that the proceedings in the suit should be stayed and the matter may be referred to arbitration. The said application was opposed by the plaintiff on the ground that the matter was not covered by the arbitration clause and the present dispute was not a contract and covered by clause 30 of the agreement. Moreover, the defendant was not ready and willing to settle the matter by arbitration and did not respond to several letters nor did it reply even the legal notice sent by the plaintiff through its counsel, before filing the suit. Therefore, this application should be dismissed. Trial court, after hearing both the parties, allowed the application of the defendant vide its order dated 24-7-1989 and stayed further proceedings in the suit. It is against this order that the Civil Misc. Appeal No. 477/1989 has been filed. Arguments have been heard. Record of the case has been perused. Learned counsel for the appellant has very vehemently submitted that the trial court did not even care to go through the so-called arbitration agreement because clause 16(b) and (c) of the agreement relied by the trial court did not refer to any arbitration whatsoever. Moreover, the matter in the present dispute is not covered by Clause 30 of the agreement and even if the matter is held to be covered by clause 30, then clause 30 is not a simple arbitration clause and the application should not have been allowed. He has also submitted that the matter in dispute is only a pure legal question which cannot be effectively decided by arbitration. Lastly, he has submitted that since the defendant was not ready and willing to go for arbitration, application u/s. 34 of the Arbitration Act ought to have been dismissed. He has placed reliance on Middle East Trading Co. v. New National Mills Limited, AIR 1960 Bom 292 and N. C. Padmanabhan v. S. Srinivasan, AIR 1967 Madras 201. Relying on these two authorities, Calcutta High Court in Shroff Bros. v. Bisheswar Dayal, AIR 1974 Calcutta 352 has held that the applicant who files an application u/s. 34 must satisfy the court that he was always ready and willing to get the matter decided by arbitration. The readiness should not be matter of implication but should be unambiguous and specific averments thereof should be made in the petition and an affidavit in support thereof. Mere repetition of the words of section is not sufficient.
(3.) LEARNED counsel for the appellant has also placed reliance on Hindustan Copper Limited v. Assam Bearing Agencies, AIR 1980 Delhi 238 wherein it has been held that mere referring to arbitration clause is not enough. The applicant must satisfy that the matter in dispute is covered by the arbitration clause. It has further been observed that one of the ingredients of Sec. 34 is that the defendant must show that it was ever ready and willing for arbitration. Silence on the part of the defendant-applicant after the receipt of legal notice also shows its unwillingness. Much reliance was placed on Union of India v. Thekedar Bhoj Raj (1960) ILR 10 Rajasthan 1244 wherein a Division Bench of this Court has also held that the defendant-applicant must satisfy to the court that the matter in dispute is covered by arbitration clause. He must further satisfy that he was ready and willing to go for arbitration.;