Case: R. Mcdill and Company Private Limited Vs. Gouri Shankar Sarda and Others

not be regarded as falling within Section 86, Code of Civil Procedure. In the case before us as already mentioned above a suit by presenting a plaint was instituted by respondent 1 and thereafter it was sought to be stayed by submitting application under Section 34 of the Act. Thus we are clearly of the view that the above case of Usmanali v. Sagarmal 1965 (3) SCR 201 : 1965 AIR(SC) 1798) is clearly distinguishable and does not help the appellants in the case before us. It may be noted that Bachawat, J. who delivered the judgment in Usmanali Khan v. Sagarmal 1965 (3) SCR 201 : 1965 AIR(SC) 1798) has himself in his book on the Law of Arbitration under the heading "Applicability of Code of Civil Procedure to Court Proceeding" mentioned a number of decisions wherein provisions of Code of Civil Procedure have been held to apply to proceedings under the Act. We have already extracted the above passage from the book of Bachawat, J 11. In Hakam Singh v. Gammon (India) Ltd. 1971 (1) SCC 286 : 1971 AIR(SC) 740 : 1971 (3) SCR 314 ) it was held that the Code of Civil Procedure in its entirety applies to proceedings under the Arbitration Act by virtue of Section 41 of the later Act. The jurisdiction of the courts under the Arbitration Act to entertain a proceeding for filing an award is accordingly governed by the provisions of the Code of Civil Procedure. By the terms of Section 20(a) of the Code of Civil Procedure read with Explanation II thereto, the respondent company which had its principal place of business at Bombay, was liable to be sued at Bombay. Thus in the above case dispute arose between the parties and the appellant submitted a petition to the Court of the Subordinate Judge at Varanasi for an order under Section 20 of the Indian Arbitration Act, 10 of 1940 that the agreement be filed and an order of reference be made to an arbitration or arbitrators appointed by the court to settle the dispute between the parties in respect of the construction works done by him. In order to determine the place of suing, it was held that Section 20 of the Code of Civil Procedure would govern the case 12. Thus we do not find any force in the submission made by learned counsel for the appellants before us that the provisions of Order XXIII of the Code of Civil Procedure will not apply to the order passed by the High Court on February 25, 196613. We would, now, consider the scope and effect of the order dated February 25, 1966 considering that the said order would be governed by the provisions of Order XXIII of the Code of Civil Procedure. Admittedly, appellants 1 and 2 were defendants in the suit filed by respondent 1. A joint application was submitted on their behalf for staying the proceedings of the suit, under Section 34 of the Act. Though the order dated February 25, 1966 does not make a mention of the formal defect on account of which the said application was withdrawn, but the appellants have categorically stated that the same was withdrawn on account of the fact the copy of the plaint was not annexed with such application and in the absence of any counter made by the respondent, we take that the reason for withdrawing the application was that copy of the plaint was not annexed with such application. The said application was allowed to be withdrawn with liberty to make a fresh application. To our mind, the term a fresh application used in singular had no more significance that the fact that as both the appellants has submitted one joint application as such the liberty was given to make a fresh application. The main purpose of moving the application by the appellant was to stay the proceedings of the suit under Section 34 of the Act. The intention and the purpose of moving two separate applications is also to stay the proceedings of the suit under Section 34 of the Act. The explanation given by the appellants for moving two separate applications is that they were given a legal advice to move two separate applications as there were two different agreements between appellants 1 and 2 and respondent 1. There was no element of mala fide in doing so and the two applications were also submitted on March 21, 1966 i.e. within 30 days of the order dated February 25, 1966. Learned counsel for respondent 1 submitted that there was no merit in the applications submitted by the appellants under Section 34 of the Act and proceedings of the suit have already remained stayed for nearly 15 years in this Court and now there is no justification for further staying the suit. So far as the pendency of this appeal in this Court is concerned, no party is at fault and it would have been proper if the respondent had been advised not to take such objection of non- maintainability of two applications before the High Court and would have contested the applications on merits. We are not deciding the question of maintainability of the applications under Section 34 of the Act on merits and we make it clear that respondent 1 would be free to take all objections as he likes against the grant of such application and the same would be decided by the High Court on merits in accordance with law. We are, however, clearly of the view that the High Court was not correct in dismissing the applications on the ground that two applications were not maintainable as the same were not covered within the order passed by the High Court dated February 25, 1966. In view of the fact that it is an old matter, we request the High Court to dispose of the applications filed by appellants 1 and 2 under Section 34 of the Act, at the earliest

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]12. Thus we do not find any force in the submission made by learned counsel for the appellants before us that the provisions of Order XXIII of the Code of Civil Procedure will not apply to the order passed by the High Court on February 25, 196613. We would, now, consider the scope and effect of the order dated February 25, 1966 considering that the said order would be governed by the provisions of Order XXIII of the Code of Civil Procedure. Admittedly, appellants 1 and 2 were defendants in the suit filed by respondent 1. A joint application was submitted on their behalf for staying the proceedings of the suit, under Section 34 of the Act. Though the order dated February 25, 1966 does not make a mention of the formal defect on account of which the said application was withdrawn, but the appellants have categorically stated that the same was withdrawn on account of the fact the copy of the plaint was not annexed with such application and in the absence of any counter made by the respondent, we take that the reason for withdrawing the application was that copy of the plaint was not annexed with such application. The said application was allowed to be withdrawn with liberty to make a fresh application. To our mind, the term a fresh application used in singular had no more significance that the fact that as both the appellants has submitted one joint application as such the liberty was given to make a fresh application. The main purpose of moving the application by the appellant was to stay the proceedings of the suit under Section 34 of the Act. The intention and the purpose of moving two separate applications is also to stay the proceedings of the suit under Section 34 of the Act. The explanation given by the appellants for moving two separate applications is that they were given a legal advice to move two separate applications as there were two different agreements between appellants 1 and 2 and respondent 1. There was no element of mala fide in doing so and the two applications were also submitted on March 21, 1966 i.e. within 30 days of the order dated February 25, 1966. Learned counsel for respondent 1 submitted that there was no merit in the applications submitted by the appellants under Section 34 of the Act and proceedings of the suit have already remained stayed for nearly 15 years in this Court and now there is no justification for further staying the suit. So far as the pendency of this appeal in this Court is concerned, no party is at fault and it would have been proper if the respondent had been advised not to take such objection of non- maintainability of two applications before the High Court and would have contested the applications on merits. We are not deciding the question of maintainability of the applications under Section 34 of the Act on merits and we make it clear that respondent 1 would be free to take all objections as he likes against the grant of such application and the same would be decided by the High Court on merits in accordance with law. We are, however, clearly of the view that the High Court was not correct in dismissing the applications on the ground that two applications were not maintainable as the same were not covered within the order passed by the High Court dated February 25, 1966. In view of the fact that it is an old matter, we request the High Court to dispose of the applications filed by appellants 1 and 2 under Section 34 of the Act, at the earliest