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TMI Blog2003 (1) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... . 861 of 1989 which was a suit filed by M/s. Capp. International Private Limited, for a declaration that the contract evidenced by Ext. B4 was duly discharged by performance and no part of the contract subsisted and also for a declaration that the first defendant was not entitled to make any claim against the plaintiff under the said contract by way of damages or loss or otherwise and also for a decree directing the first defendant and or the second defendant to pay the plaintiff bank guarantee of Rs. 3.5 lakhs appropriated by the first defendant with interest. 3. Suit was instituted on 3-11-1989 and was posted to 17-1-1990 for the appearance of the defendants. On 17-1-1990 defendants entered appearance and asked for time and the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cold Storage Co. Ltd. v. Sir Brijnath Singhi AIR 1956 Nag. 61 and Sewa Ram Ahmednagar v. Smt. Raj Rani AIR 1985 Punj. Har. 84. 5. The court below took the view that a request for time to file written statement would not by itself mean that the first defendant had given up his right to initiate arbitration proceedings. Further, from the mere fact that they had sought for adjournment as such is not enough to draw a presumption that the defendant had manifested an intention to waive the benefit of the arbitration clause and to proceed with the suit. The court below held that Exts. B6, B9, B10 and B11 documents would suggest a contra intention and consequently took the view that the petition under section 34 was maintainable. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 3-3-1988 would enable the parties to resolve the disputes and differences arose between them by way of arbitration. The said clause specifically says that such disputes shall be referred to the Secretary, Industries Department, Government of Kerala. Instead of availing the arbitration remedy plaintiff had filed O.S. No. 861 of 1989 on 3-11-1989 and the case was posted to 17-1-1990 for return of notice to defendants. B diary would indicate that on 17-1-1990 defendants sought time for filing written statement. The case was adjourned to 1-4-1990. 1-4-1990 was a holiday and the case automatically stood adjourned to 2-4-1990. On 2-4-1990 plaintiff had filed an application for injunction and the case was adjourned for filing objection to 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as the new Arbitration Act, 1996 provides for resolution of disputes through concili-ation. The Apex Court in Rachppa Guruadappa s case ( supra ) clearly held that "some other step" mentioned in the section must indisputably by such step as would manifestly display an unequivocal intention to proceed with the suit and to give up the right to have the matter disposed of by arbitration. In this case, counsel appearing for the Corporation had sought time for filing written statement. The said conduct by itself would not lead to the irresistible conclusion that the parties wanted to have that the matter disposed of by Civil Court. In the Instant case there are several factors which would indicate a contrary intention. Ext. B6 is a letter da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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