Rajasthan High Court - Jaipur
Nagpur Golden Transport Co. vs Vimal Textiles on 11 July, 1988
Equivalent citations: 1988WLN(UC)189
Author: Narendra Mohan Kasliwal
Bench: Narendra Mohan Kasliwal
JUDGMENT Narendra Mohan Kasliwal, J.
1. This is an appeal by the defendant against the order of the learned Additional District Judge, No. 2, Jaipur City, Jaipur dated 1st September, 1986.
2. The plaintiff-respondent filed a suit for the recovery of Rs. 26,192/-against the appellant on 16th February, 1985. The defendant was served with a notice to appear on 4th May, 1985 and on that day he filed an application under Section 34 of the Arbitration Act for staying the proceedings. The learned Trial Court by the impugned order dismissed the stay application filed by the defendant.
3. I have heard learned Counsel for both the parties at length. It was contended by Mr. Keshote, learned Counsel for the appellant that the defendant sent a reply on 18th January, 1985 to the notice sent by the plaintiff. In the reply it was mentioned by the defendant that the plaintiff should claim the liability against the Insurance Company and thereafter, should take any action against the appellant. It is submitted that after the aforesaid reply sent by the defendant the plaintiff did not resort to any action against the Insurance Company and directly filed the present suit on 16th February, 1985. It is argued that the defendant at the first opportunity available to him took an objection under Section 34 of the Arbitration Act and also filed affidavits of the Manager of the defendant-company on 16th September, 1985 and 18th February, 1986 mentioning clearly in the last affidavit that the defendent company was always ready and willing to the appointment of arbitrator as contemplated in the agreement between the parties. It has thus been submitted that the defendant-appellant had never shown or raised any objection in the appointment of the arbitrator and the plaintiff before filing the suit never showed his intention of appointing any arbitrator in the case. In these circumstances, it is submitted that it should be inferred that the defendant-appellant was always ready and willing to the appointment of arbitrator in the present case.
4. On the other hand, learned Counsel for the plaintiff submitted that neither before the filing of the suit nor even in the application filed under Section 34 of the Arbitration Act on 4th May, 1985, it was mentioned by the defendant that it was and is ready and willing to appoint an arbitrator. It was argued that it was necessary for the defendant to have expressed unequivocally in clear terms that it was and is ready and willing to the appointment of arbitrator as contemplated in the agreement. It was further argued that neither in the reply sent by the defendant on 18th January, 1986 nor in the application filed on 4th May, 1985. it was specifically mentioned by the defendant that it was ready and willing to appoint an arbitrator from the start of the proceedings between the parties. Reliance in support of the above contention is placed on Joharimal v. Fatehchand 1960 RLW 84, Jeewanmal and Ors. v. Dr. Dharam Chand Khatri and Ors. AIR 1971 Rajasthan 84 and State of Uttar Pradesh v. Harsh Singh Kamval .
5. It was also argued by Mr. Goyal that this Hon'ble Court should be allowed in interfering in the discretion of the trial court against the order passed on an application under Section 34 of the Arbitration Act. Reliance in support of this contention is placed on Uttar Pradesh Co-operative Federation Ltd. v. Sunder Bros. Delhi .
6. Admittedly, a notice was given by the plaintiff claiming comepensation for the loss of poods delivered to the appellant for transporting from Jaipur to Nagpur. The defendant sent a reply on 18th January, 1985 and in the said reply asked the plaintiff to take action against the insurance company and then to take any proceedings against the defendant. In the paid reply no mention at all was made for showing willingness to appoint an arbitrator under the terms of the agreement even alternatively. The defendant should have mentioned in his reply to the notice that apart from taking any steps against the insurance company, if the plaintiff was going to take action against the defendant then the defendant was claiming its right to the appointment of an arbitrator and for which it was willing to do so. Even in the application filed on 4th May, 1985, no such averment was made that the defendant was ready and willing from the start of the proceedings to the appointment of any arbitrator. Whether to agree or not to the appointment of an arbitrator under the terms of the agreement is the state of mind and it was necessary for the defendant to have pleaded in un-equivocal and clear terms that it had an intention or mind for the dispute to be referred to arbitrator under the terms of the agreement. No such averment was made in the application dated 4th May, 1985 nor any affidavit to the above effect was filed along with the said application. Subsequently, an affidavit was filed, on 16th September, 1985 but in this affidavit also the above averment was not made and it was only in a further affidavit filed on 18th February, 1986 that such plea was taken. In the facts and circumstances mentioned above such plea mentioned in an affidavit dated 18th February, 1986 is clearly an after-thought and cannot be believed that the defendant was ever ready and willing to get the matter resolved by an arbitrator even from the start of the proceedings.
7. In view of these circumstances, I find no force in this appeal and it is accordingly dismissed.