Impact Advertising Pvt. Ltd. ... vs M/S. Thomson Press (India) Ltd.
2000 Latest Caselaw 51 Del

ORDER

Vijender Jain, J.

1. Aggrieved by the order passed by the Additional District Judge, this appeal has been filed by the defendant/appellant. It has been contended by Mr. Bhasin, learned counsel for the appellant that the finding of the Additional District Judge that there was no mention that the defendant/appellant was ready and willing to take steps for arbitration proceedings was wholly perverse. In support of his contention, learned counsel for the appellant has cited M/s. Srivenkateswara Constructions & Others Vs. Union of India, and Food Corporation of India Vs. M/s. Thakur Shipping Co. Ltd., AIR 1980 Goa 25.

2. On the other hand, Mr. Vijay Kishan, counsel for the respondent has contended that apart from the fact that there was no arbitration clause between the parties even in the application filed under Section 34 of the Arbitration Act, the appellant has not averred that he was ready to submit for the jurisdiction of the arbitration after the commencement of the proceedings and, therefore, the trial court has rightly rejected the application.

3. I have given my careful consideration to the arguments advanced by learned counsel for both the parties. As a matter of fact, under Section 34 of the Arbitration Act, 1940, the legislative intention is manifested in view of the following wording :-

"................. any party to such legal proceedings may at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings; and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and wiling to do all things necessary to the proper conduct of the arbitration ........."

4. From the plain reading of the words "when the proceedings were commenced, and still remains", denotes the legislative intention that when the proceedings were commenced relates to the past and still remains refers to the present. Therefore, in order to succeed in an application under Section 34 of the Arbitration Act, the party invoking the aid of Section 34 has to state that the applicant was ready to refer the dispute to the arbitration when the proceedings commenced and still remains ready and willing to do all things necessary in this regard.

5. I have perused through paragraph 5 of the application. No such averment has been made in the application. I do not find any infirmity with the order passed by the Additional District Judge.

6. Dismissed.