Law: Arbitration Act (X of 1940)

Section:

Law: Civil Procedure Code (V of 1908)

Section:

  Arbitration Act (X of 1940)-- ---5.  34---Arbitration  agreement---Stay  of  suit---Essentials---Duty  of theCourt.--[Novelty Cinema v. Firdous Films PLD 1958 Lah. 208; Muhammad Yousuf v. Muhammad Ali 1983 CLC 1498; Zohra Begum v. Messrs Abdur Ra7aak and others 1984 CLC 1643; Messrs Cosmo-Politan Development Company v. Messrs So.Di. Me 1987 MLD 2832 and Syed Arshad Ali v. Sarwat Ali Abbasi 1988 CLC 1350 dissented from] Application under section 34, Arbitration Act, 1940, should categorically state either in itself or through the affidavit in support of it that there is an Arbitration Agreement, which covers the dispute in suit, applicant's response to the dispute, without embarking upon details, and an expression of willingness, at all material times, on the part of the applicant to go to arbitration in order that the dispute be resolved. However, in the event, such particulars are missing, to stake a view that the application is to be dismissed on that score alone may be too technical an approach. Likewise, a requirement of details of the dispute, on the part of the applicant for stay of proceedings, on pains of refusal of relief may, also, be unwarranted on the language of section 34 of the Arbitration Act. Where parties agree to a domestic forum, such as a tribunal for arbitration, and one of them approaches the Court for relief, in a dispute covered by the arbitration agreement, and the other party, in response, seeks stay of the suit under Section 34 of the Arbitration Act, every endeavour has to be made by the Court to determine, on the material before it, whether the dispute in the suit is covered by the agreement to refer. It is true that to stay the suit is discretionar with the Court but the exercise o discretion, which is judicial, must be in favour of upholding and giving effect to the agreement, all things being equal, rather than in bye-passing it. For the purpose of determining whether the dispute is so covered, the essential material to be seen is the plaint in suit and the arbitration agreement involved in the suit or pleaded for seeking its stay. The plaint must obviously contain a cause of action, since no…