LAXMINARAYAN BHOORMAL Vs. FOOD CORPORATION OF INDIA

JUDGEMENT

(1.) On a difference of opinion between B. C. Varma, J. recorded on 13 -2 -1991 and that of R.D. Shukla, J. recorded on 24 -6 -1991, the case has come up before me.

(2.) The question for determination in this appeal is as to whether the legal proceedings (the suit) be stayed and the matter for adjudication be referred to an arbitrator, by invoking the power of the Court under Section 34 of the Arbitration Act, 1940 (hereinafter to be referred to as the Act). The Court below has directed that further proceedings in the suit be stayed and the dispute within the parties be referred to arbitration. The plaintiff preferred this appeal against the order of the trial Court. B. C. Varma, J. by his order dated 13 -2 -1991, was of the opinion that the appeal be allowed and the order dated 24 -11 -1987 passed by the lower Court staying the proceedings in the suit be set aside and the application under Section 34 of the Act be rejected, and the trial Court should now proceed with the suit in accordance with law. R. D. Shukla, J, by his order dated 24 -6 -1991, on the contrary, has recorded that there being no conscious participation in the proceedings in the suit, mere request for filing the power and the written statement should not be deemed to be a step in the proceedings, and that, therefore, the appeal be dismissed.

(3.) Shorn of all details, the facts which are admitted and on the basis of which this appeal can be decided are these: On 29 -4 -1983, the plaintiff/appellant instituted the suit for recovery of Rs. 2,02,000/ -. The appellant/plaintiff alleged in the plaint that there was no dispute between the parties as to the work done by the plaintiff; that there was no cause for defendants/respondents to withhold payment of the bills shown in Schedule -A who never disputed the payment of those bills and the plaintiff was assured of such payment. The suit was registered as Civil Suit No. 11 -A of 1983 in the Court of District Judge, Rajnandgaon. The suit having been so filed, summons were directed to be issued by the trial Court to the defendants. On 3 -8 -1983, the defendants appeared after the writ of summons through Shri M. K. Shrivastava, Advocate who filed his memo of appearance. The order dated 3 -8 -1983 reads thus: