1994 PLP 372 (MLD)

HAZIQ-UL-KHAIRI, J: --This High Court Appeal is directed against the order, dated 14-1-1990 passed by a learned Single Judge of this Court on the original side in Suit No.882 of 1987 filed by the appellant against the respondents. The said suit was for recovery of Rs.21,25,921.46 against the respondents herein. In the said suit the respondents immediately after receipt of the summons filed an application under section 34 of Arbitration Act 1940 bearing No. C.MA. 2425 of 1988 praying for stay of the suit. While this application was pending, the learned Additional Registrar debarred respondent No.3 herein from filing written statement. In view of this position respondent No.3 moved an application bearing C.MA. No.6045 of 1988 under Rule 159 of the Sindh Chief Court Rules (O.S.) -in which it was prayed that the learned Registrar may be pleased to recall his order whereby respondent No.3 was debarred from filing written statement. The appellant did not file any counter affidavit or objections opposing C.MA. No.2425 of 1988 being the application under section 34 of the Arbitration Act. However, when this application came up for hearing before the learned Single Judge it was contended by the learned counsel for the appellant that the respondent No.3 by filing the other application bearing C.MA. No.6045 of 1988 has taken steps into proceedings for which reason their C.MA. No.2425 of 1988 under section 34 of the Arbitration Act is liable to be dismissed. This is an admitted position that the parties had agreed that in case of any dispute arising between them, the same would be referred to arbitration in accordance with the rules of International Chamber of Commerce of Stockhom (Sweden) and the Charter Party Contract between the parties also refers to reference of any dispute between them to arbitration. Mr. Abdul Ghaffar Siddiqui, learned counsel for the appellant while conceding that the appellant neither filed any counter-affidavit nor objections of any kind in opposition to the application of respondent No. 3 under section 34 of the Arbitration Act, 1940, vehemently urged that it was the duty of the Court to ascertain from the facts as disclosed in the plaint as to whether stay under section 34 of the Arbitration Act should or should not be granted. According to him, the evidence relating to the dispute was and is available in Pakistan and despite the parties having agreed to refer the dispute to arbitration in terms of the above-referred clause and the Charter Party Contract should have proceeded with the suit. Besides, it was contended that there was involvement of large amount of foreign exchange and the parties shall also be put to unnecessary inconvenience and expenditure in pursuing the arbitration proceedings abroad. In support of his contention, learned counsel placed reliance on M/s. Uzin Export and Import Enterprises for Foreign Trade v. M/s. M. Iftikhar and Company Limited 1993 SCMR 866 and Echhardt & Co. v. Muhammad Hanif PLD 1993 SC

42. It was further argued by Mr. Abdul Ghaffar Siddiqui that. Respondent No.3 by filing an application bearing C.MA. No.6045 of 1988 under Rule 159 of the Sindh Chief Court Rules has taken steps in the proceedings and, therefore, they are not entitled to stay of suit as prayed by them. Except this contention and that too verbally at the time of hearing of the application, no other plea was raised by the appellant. In fact the appellant had failed to file any counter-affidavit/objection opposing the said application under section 34 of the Arbitration Act, hence, the appellant cannot be allowed to raise these contentions at the appellate stage. As to the said verbal objection we are 0 the view that the learned Single Judge had rightly observed that since C.M.A. No.6045 of 1988 was filed subsequent to the stay application under section 34 of the Arbitration Act, it cannot be said that the respondent No.3 had taken steps in the proceedings. The grievance of the appellant, however, is that despite stay of the suit, the arbitration proceedings have not been commenced as yet which position is disputed by learned counsel for the respondents. In any case it is an admitted position that the arbitration proceedings have not been concluded. Whether in the circumstances of the case the arbitration proceedings have become infructuous or otherwise the stay should have been vacated are questions which may be considered by the learned trial Court under section 31 of the Arbitration Act at the instance of a party and not by us sitting in appeal. With these observations we dismiss the appeal but with no order as to costs. AA./P-293/K Appeal dismissed.