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TMI Blog1924 (12) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... e a copy of the summons was affixed to the outer door of 33, Armenian Street, by the Sheriff's peon. In my opinion, such a mode of service does not comply with the requirements of Order V, Rule 17. I had occasion recently to state what in my opinion those requirements were, and I need not repeat them: Buldeodas Lohia v. Subkarandas Goenka AIR1925Cal627 . It was not enough in the circumstances that the plaintiff, in order to become entitled to take advantage of the provisions for substituted service, should have called once, twice or any number of times at 33, Armenian Street. A plaintiff must use reasonable diligence to ascertain the whereabouts of the defendant, and where, as in this case the defendant according to the plaintiff, resided both at 33, Armenian Street, and at 2, Turner Road, Chitpore, the plaintiff cannot be held to have used reasonable diligence to discover the defendant's whereabouts if he did not make enquiries for the defendant at both of those places. No attempt, however, has been made at any time to serve the defendant at 2, Turner Road, Chitpore and, in my opinion the first alleged service does not constitute a valid service of the writ of summons. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the jurisdiction of the District Judge's Court, Alipore and that your petitioners submit that a fresh summons be issued under the seal of the Hon'ble Court." No attempt has been made, however, as I have said, to effect personal service at this address. In these circumstances I hold that the necessary preliminary steps were not taken to justify the plaintiff in effecting service by a mode of substituted service. I, therefore, granted the defendant, leave to enter an appearance. The defendant thereupon filed his warrant of attorney and entered an appearance, and on the plaintiff consenting that the second part of the plaintiff's motion should be heard forthwith the defendant applied that all further proceedings in the suit should be stayed pending a reference of the matters in controversy therein. The suit is brought to recover damages for the alleged failure of this defendant to deliver a large quantity of hessian cloth pursuant to two contracts of sale dated 15th September 1923 and the 5th October 1923. It was a term of each of the said contracts that " any dispute whatsoever arising on or out of this contract shall be referred to arbitration, under the rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 4 of the English Arbitration Act, 1889, which is couched in language almost identical with that to be found in Section 19 of the Indian Arbitration Act. His Lordship observed that " The authorities show that a step in the proceedings means something in the nature of an application to the Court, and not mere talk between solicitors or solicitors' clerks nor the writing of letters, but the taking of some step such as taking out a summons or something of that kind which is in the technical sense a step in the proceedings.'' Ives and Barker v. Willans [1894] 2 Ch. 478. Moreover, to apply for a copy of the plaint is merely to seek information in order that the defendant may ascertain the nature of the plaintiff's claim. In so doing the defendant does not, and is not to be deemed to, indicate his acquiescence in the course adopted by the plaintiff for the purpose of settling the dispute which has arisen, for until he is made aware of the plaintiff's cause of action he is not in a position to elect whether he will proceed by way of arbitration or will assent to the litigation which has been commenced against him. As regards the second ground which the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin Section 19 of the Arbitration Act. Now, I apprehend that the intention of the Legislature in enacting Section 19 was that in a proper case the Court should give effect to the agreement for arbitration into which the parties had entered. It was not, however, intended that a party should lie by and after having wasted time and money in litigation should apply for a stay of the proceedings in order that the dispute should be settled by arbitration. "The intention of the Legislature in giving effect to the contract of the parties and saying that one of them should be entitled to make an application to insist that the matter should be referred according to the original agreement was that they should at once and before any proceedings were taken specify the terminus a quo and that if an application to stay proceedings was made under those circumstances then the Court should enforce the contractual obligation to go to arbitration. That seems to me a very wise provision that costs should not be thrown away in beginning to litigate," per Lord Halsbury, Lord Chancellor, Ford's Hotel Co. v. Bartlett (1896) A.C. 1. Any act in the nature of an application to the Court which i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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