Parasmal S. JaIn Vs. Deputy Commissioner - Court Judgment

Excerpt:
arbitration act, 1940 (central act no. 10 of 1940) - section 34 -- stay of suit -- appellant claiming loss of business, costs of goods & damages for illegal locking of his premises/godown -- respondent appearing in court & filing ia for stay of suit, but without averring that he was ready & willing to refer to arbitration under contractual clause -- held, court below erred in allowing ia for stay without relevant averments & order liable to be set aside.;the learned civil judge has failed to notice that one of the relevant averments has not been made by the 3rd respondent-defendant no. 3 between whom and the appellant-plaintiff there was agreement to refer the dispute for arbitration......the reasoning of the learned civil judge that on the very day the 3rd defendant put in appearance, he filed i.a.ii and this shows that he is ready and willing to a bide by clause 31 of the agreement cannot be sustained. - sections 84 & 88 & bangalore sewerage (amendment) regulations 1997, regulation 2(c): [n.k.patil, j] notifications issued under - fixing the schedule charges to domestic and non-domestic connections - borewell charges of rs. 185/- per month per h.p. of bore wells demand - legality of challenge as to held, admittedly, the bwssb has issued the impugned demand notices by invoking the sl.no.(vii) of the schedule of fixed charges. a plain reading of the said clause shows that, the bore well charges of rs. 185/-per month per h.p. of bore wells is applicable only in respect of hotels and commercial establishments. by no stretch of imagination, the petitioners herein, being central government establishments could come under the said category of hotels and commercial establishments. further, it is pertinent to note that, the competent authority of the bwssb, without proper application of mind and without authority of law, on the basis of sl.no. (vii) of the notification dated 1st april 1997 and amended regulation (c), has claimed the sanitary charges in respect of the bore wells. the said sl.no.(vii) of the schedule of charges is amply clear that it pertains to only hotels and commercial establishments. in the case on hand, the petitioners are neither hotels nor commercial establishments and are central government establishments. the impugned demand notices cannot be sustained and the same are liable to be set aside. - the learned civil judge has failed to notice that one of the relevant averments has not been made by the 3rd respondent-defendant no.m.s. vishwanath, j.1. the learned high court government pleader is directed to take notice for respondent no. 1. accordingly, she takes notice.2. heard the learned counsel for the appellant and the learned government pleader.3. in this appeal, the appellant-plaintiff has challenged the order dated 21.1.1987 passed by the learned civil judge, gadag, on i.a.no. ii filed under section 34 of the arbitration act staying the suit in o.s.no. 71/1986 and allowing i.a.ii.4. the appellant-plaintiff filed the suit against the 1st defendant -deputy commissioner, 2nd defendant - chairman, karnataka food and civil supplies corporation and the third defendant - m/s. d. ganesh shankar naushad, bangalore, claiming rs. 86,000/-.5. the plaintiff's case is that on account or illegal locking of the godown the plaintiff was made to unnecessarily pay rs. 8000/-towards rent. his further case is that 113 barrels of oil were taken into custody illegally. he has incurred a loss of rs. 36,160/- in this regard. the plaintiffs has further claimed the cost of 113 barrels, which amounts to rs. 22,500/-. he has also claimed rs. 20,000/-towards the loss of reputation, business and mental agony.6. in this court, respondent-deputy commissioner was not represented. the learned government pleader was directed to take notice and accordingly, she took notice. the second respondent-defendant no. 2 was served but absent. it is seen from the order sheet dated 10.2.1988 this court directed the appellant to take out notice to the counsel appearing for the parties in the court below. the counsel appearing for the 3rd respondent-defendant no. 3 has been served with notice but he has not appeared before this court.7. the learned counsel for the appellant submits that after she appeared she again took out notice to the counsel for the 3rd respondent - 3rd defendant and the 3rd respondent's counsel was again served but has not chosen to appear before this court. what happened in the lower court was that after service of suit summons to 3rd respondent-defendant no. 3 he appeared before the court and filed his own affidavit along with i.a.ii under section 34 of the arbitration act.8. the learned civil judge as i have already stated, allowed i.a.ii under section 34 of the arbitration act and stayed the suit.9. the learned counsel for the appellant took me through the affidavit in support of i.a.ii under section 34 of the arbitration act. nowhere in the affidavit has the 3rd defendant stated that he was ready and willing at the commencement of the proceedings and is still willing to do all things necessary for the proper conduct of arbitration proceedings.10. the law in this regard has been laid down in food corporation of india v. kishan lal agarwal : air1980all181 , and in middle east trading co., bombay v. the new national mills ltd. ahmedabad air 1960 bom 292. it has been laid down by the bombay high court that where the defendant asks for the stay of suit under section 34, it is incumbent on him to aver all the requirements of the section which are necessary in order to obtain stay of the suit. it is also necessary that he should satisfy not only that he is but also was at the commencement of the proceedings ready and willing to do everything necessary for the proper conduct of the arbitration. this is also the view taken by the allahabad high court.11. i agree with the view taken by the bombay high court and also allahabad high court. the learned civil judge has failed to notice that one of the relevant averments has not been made by the 3rd respondent-defendant no. 3 between whom and the appellant-plaintiff there was agreement to refer the dispute for arbitration.12. the reasoning of the learned civil judge that on the very day the 3rd defendant put in appearance, he filed i.a.ii and this shows that he is ready and willing to abide by clause 31 of the agreement cannot be sustained.13. for the aforesaid reasons, the appeal is allowed and the impugned order passed by the learned civil judge dated 21.1.1987 is set aside and he is directed to proceed with the suit in accordance with law.14. the learned high court government pleader is permitted to file memo of appearance within four weeks.