MUHAMMAD AMEER BHATTI, J.Through this appeal the order dated 16.07.2011 has been assailed, whereby the learned Trial Court while staying the proceedings in the suit, accepted the application under Section 34 of the Arbitration Act (X) of 1940 by referring the matter to the sole Arbitrator M.D.
PASSCO for Arbitration within the shortest possible period preferably within two months.
2. Brief facts of the case are that the appellant instituted a suit before the learned Trial Court seeking a decree for recovery of Ks. 1,940,300,000/- in respect of contract relating to purchase of 7000 Metric Tons Super Long Grain Basmati Rice by the appellant from the respondent. 'I he agreement was written according to the terms and conditions settled between (he parties, somehow, a dispute arose between the parties about the non-lifting of the rice within the stipulated period agreed between the parties as per agreement and the respondents forfeited the amount (paid in advance by the appellant 1 and the appellant suffered loss due to this dispute.
Thus filed a suit and the respondents joined proceedings of the suit and filed the application under Section 34 of the Arbitration Act, by invoking the arbitration clause provided in the agreement, for making the reference to the sole arbitrator and till then prayed for the stay of the suit proceedings.
The learned Trial Court while accepting that application, referred the matter to the arbitrator and till then the proceedings of the suit was stayed.
3. The appellant has impugned the order of the learned Trial Court while invoking the provisions of 39(i)(v) of the Arbitration Act (X) of 1940 before this Court. The contention of the learned counsel for the appellant is that the respondents have joined the proceedings and obtained the dates for filing of the written statements, thereafter, they have lost the chance of availing the remedy provided under Section 34 of the Arbitration Act, therefore, the learned Trial Court had travelled beyond its jurisdiction, while passing the impugned order which is untenable in the eye of law. Further, contends that keeping in view of the universally recognized doctrine that no one can be a Judge in his own cause, the reference to the M.D. PASC'CO (who is the head of therespondent/department) for arbitration of the matter, the appellant apprehends he will not get any justice, therefore, it would be an exercise in futility resulting in sheer loss of time and energies for nothing. Even otherwise, the appellant has claimed damages besides recovery of his advance amount which had been illegally forfeited, therefore, the reference to the arbitrator is illegal and un-lawful.
4. On the other hand the learned counsel for the respondent contends that on 15.05.2011, copy of the plaint was delivered to the respondent and thereafter the respondent availed the remedy promptly as enunciated under Section 34 of Arbitration Act, therefore, there is no illegality in the order of the learned Trial Court. Further contends that the arbitrator was appointed with the Consultation and consensus of the parties as there was no undue pressure on the appellant at the time of executing the indenture and he with his free will, had not only agreed to the terms and conditions of the agreement but also signed it, therefore, at this stage he is estopped by his words and conduct and now cannot take shelter behind the doctrine that no one can be a Judge in his own cause. So, the order of the learned Trial Court is based on the principal laid down by the Hon'ble Supreme Court as well as this Court and taking into consideration the provisions of law Section 34 of the Arbitration Act, there is no illegality and irregularity, hence the appeal is liable to be dismissed.
5. I have considered the arguments of the learned counsel for the parties and gone through the record of the case.
6. It is astonishing for this Court that the suit filed by the appellant has been stayed only for the period of two months by referring the matter to the arbitrator, who had been appointed by both the parties relating to their disputes with their free consent and the learned Trial Court while exercising the provisions of Section 34 of the Arbitration Act, referred the matter for obtaining the decision of the arbitrator. If the appellant had not approached this Court and it is stead, joined the proceedings before the CLR. arbitrator, the matter would have been decided much earlier than the time consumed in availing the remedy of appeal before this Court. The learned counsel for the parties have argued the merits of the case which have no relevancy at this juncture. The point at issue at the moment is whether the provisions of Section 34 of the Arbitration Act has been rightly or wrongly exercised by the learned Trial Court. The facts and circumstances of the case as explain by the learned counsel for the parties and going through the record of the case, I find that the provision of Section 34 of the Arbitration Act has been rightly and correctly exercised by the learned Trial Court. The application under Section 34 of the Arbitration Act was aptly and promptly filed by the respondent as there is no evidence that the appellant had lost any time and had not taken steps for invoking the arbitration process at the first instance as required by Section 34 of the Arbitration Act. Reliance is placed or Pakistan international Airline Corporation v. M/s. Pak. Saff Dry Cleaner (PLD 1981 S.C. 553). Consequently, this Court feels no hesitation to declare that the order of the learned Trial Court is in accordance with law inasmuch as the learned Trial Court has not committed any illegality or irregularity while exercising the powers provided under Section 34 of the Arbitration Act with respect to the peculiar facts and circumstances of the case at hand.
7. For what has been discussed above, this appeal has no force and dismissed accordingly.