Order
1. This appeal has been filed against the judgment of the High Court dismissing the appeal filed by the appellant. The appeal before the High Court was filed against an order passed by the Sub-Judge, Garhshankar refusing to stay the suit on an application made under Section 34 of the Arbitration Act by the present appellant who was the defendant in the suit before the trial court.
2. The learned trial court refused to stay the suit and exercised discretion under Section 34 of the Arbitration Act against the appellant on the ground that in respect of the same dispute regarding recovery of arrears of electrical dues outstanding against the appellant for so many years. The appellant himself filed a suit for temporary injunction and in that suit the present respondents submitted an application under Section 34 of the Arbitration Act on the basis of conditions of supply clause 29 raising the plea that the dispute is referable to the arbitration of Chief Electrical Inspector.
3. It appears that the suit was stayed and the matter was referred to the arbitration of the Chief Electrical Inspector, but nothing could be decided and the matter remained as it was. Ultimately the respondent-Electricity Board filed the present suit for recovery of arrears which were outstanding for all these years. In this suit the present appellant/defendant submitted an application under Section 34 of the Arbitration Act, although earlier this defendant himself disregarding the conditions of supply as provided in Rule 29 filed a suit for temporary injunction. The learned trial Judge, therefore, in view of the fact that this appellant who is now trying to seek defence under Section 34 of the Arbitration Act himself has chosen to give a go-by to the conditions of supply and filed a suit and ultimately the reference to the Electricity Inspector resulted in nothing and the matter could not be decided, felt in his discretion that no useful purpose will be served by making a reference to the arbitration. No agreement was produced.
4. Against this the appellant went to the High Court and the High Court rejected the appeal in limine finding that the discretion exercised by the trial court was such which could not be interfered with. Against the order of the High Court the present appeal is filed by the appellant after leave.
5. It is not disputed that it was the appellant who first went to the civil court for grant of temporary injunction and in that suit, it was the respondents who raised the plea of arbitration clause and the suit was stayed. It is admitted that the dispute was not settled by the arbitration and the matter remained as it was. It is also not disputed that the dispute pertains to electricity charges which have not been paid according to the Board and therefore the Board had no option but to file a suit for recovery. When this suit was filed, the appellant now chooses to raise this plea of Section 34 of the Arbitration Act, although he himself has chosen to give a go-by to the arbitration clause earlier in the civil court. The learned trial court, therefore, in the circumstances where the appellant has himself chosen to give a go-by to the arbitration clause and ultimately the dispute remains as it is refused to exercise discretion in favour of the appellant to give effect to Section 34 of the Arbitration Act. It could not be said that the courts below did not exercise the discretion judiciously.
6. The learned counsel for the appellant referred a number of decisions on estoppel against the statute and exercise of the discretion, but none of them was relevant, as they are on their own facts.
7. In the light of the discussion above, we see no reason to entertain this appeal. The appeal is, therefore, dismissed with costs. The respondents shall be entitled to the costs which we quantify at Rs 2500.
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