1. The plaintiffs have filed this application on 30-1-1994 alongwith its supporting affidavit of Shahzada A. Usmani son of Irshad A. Usmani Manager Ginning of the plaintiff with the following prayer:-- "That this Honourable Court be pleased to enlarge the time for completion of the arbitration proceedings by four (4) months from the passing of the order."
2. This application was opposed by the defendants with a counter-affidavit filed by one Muhammad Atiq son of Shaikh Muhammad Siddique, defendant No,2, partner in defendant No,1 firm and attorney of defendants Nos.3 to 7.
3. The defendants had moved CMA No, 7247/89 under section 34 of the Arbitration Act for stay of the suit with the following prayer:-- "It is prayed on behalf of the defendants 1 and 2 that on consideration of the grounds stated in the affidavit in support of this application, this Honourable Court be pleased to order stay of the suit leaving the plaintiffs and defendants to invoke clause of Arbitration No,8 of the Agreement of Booking, Annexure "A" to the plaint.
' An affidavit is filed herewith."
4. This Court vide order dated 20-5-1990 allowed this CMA with the following order:-- "In view of the circumstances of the case, it appears that the defendants Nos. 1 and 2 are right in contending that the matter is governed by an arbitration agreement and further proceedings in the matter must, therefore, be stayed. Mr. S. Mamnoon Hassan has placed reliance on PLD 1968 Dacca 361, where suit for recovery of money, which was not based on the original contract but on a settlement accepted and acted upon outside the Court by the parties, was held to be outside the purview of the section 34 of the Arbitration Act. Needless to say that the facts of the present case are distinguishable as the dispute between the parties clearly arises out of the terms of agreement.
In view of this CMA No, 7247/89 is granted as prayed.
5. I would like to refer para. 8 of the agreement which is as under:-- "8. ARBITRATION: ' Any dispute/difference touching terms and conditions contained in this contract, failing mutual amicable settlement, shall be referred to Arbitrators one/to be nominated by each party (buyer and seller). Should the so-nominated Arbitrators fail to arrive at an agreement, they (the Arbitrators) will nominate an umpire whose findings shall be final and binding on both the parties."
6. Mr. Syed Mamnoon Hassan has referred the following authority:--(1) (PLD 1987 Quetta 209) case of Samundar v. Lal Muhammad.-- "(b) ' ' Arbitration Act (X of 1940)--- ----S.3---Arbitration agreement---Referring matter for arbitration---Object and purpose of power of Court to revoke reference---Main object of referring matter for arbitration is to obtain speedy disposal of dispute by avoiding technicalities and intricacies of procedure---Where, however, matter was being unreasonably delayed or arbitrator was causing inexcusable delay.
Court had jurisdiction to revoke, reference of authority of nominating arbitrator."
7. Mr. Kazi Faiz Essa has contended--
(i) that the matter was referred to Arbitrator for arbitration;
(ii) that the plaintiffs first appointed Mr. S.M. Ahsson as their Arbitrator and then Mr. Zahid Hussain was appointed as Arbitrator, who is employee of the plaintiffs. Mr. Niazy A. Khaliq, Advocate was appointed as arbitrator for defendant, who has also appeared on behalf of the defendant. Mr. Muhammad Zarar Siddiqui is the Arbitrator of the defendants; (iii) that no any rejoinder counter- affidavit of Muhammad Atiq has been filed and (iv) that the application is filed after 40 months. He has cited following authorities:--
(1) PLD 1964 Karachi, 3 case of Pakistan v. Gayer & Co., Karachi:-- "(a) Arbitration Act (X of 1940), Sched. I, para. 3--Expression "after entering on reference"--Means after arbitrator does something in pursuance of reference--Isssuing notice to parties for appearance before him--Amounts to entering upon reference."
The final conclusion of the learned D.B. Of this Court is as under:-- "We find no ground to interfere with the view taken by the learned Single Judge in this respect. We would, therefore, repel the contentions raised that on behalf of the appellants and hold that the learned Single Judge was perfectly justified in, the circumstances of the case in setting aside the award. In the result, we find no force in this appeal and dismiss it with no order as to costs."
This authority is quite distinguishable from the facts of the present case and in my humble view is not applicable to the present case. Here no any final award has been placed before the Court nor that award has been made rule of the Court.
(2) (NLR 1990 (Civil) 132) case of D.G. Khan Cement Company Ltd v. Haydari Construction Company Ltd.:-- "(a) Arbitration Act (X of 1940)--- S. 28---Exentsion of time for conclusion of arbitration---Question of extension requires application of mind to aspect whether or not arbitrators and parties had acted with reasonable diligence to conclude arbitration proceedings and whether there was any reasonable' explanation for undue delay caused by arbitrator---This question can be decided by Court seized with application for extension of time after summoning record of arbitration proceedings---Order by Court extending time for arbitration without aummoning record of arbitration proceedings would be unwarranted and not sustainable."
' This authority also on the facts of the case is not favourable to the case of the defendants because in this authority the petitioner has gone in appeal against the order of the trial Court.
Whereas here in this CMA the prayer is made for extension of time for arbitration proceedings.
(3) (AIR 1933 Patna 566) case of Anand Das v. Rambhushan Das:- "(b) Civil P.C. (1908), Sched. 2, Para. 8---Appliction for extension of time--Court can take all circumstances into consideration including allegation of misconduct of arbitrator."
' This authority is also not favourable to the case of the defendant as there is no any allegation by the parties for misconduct of the Arbitrator.
(4) CLC 1985 721 relevant page is 722--case of Messrs Rafi Associates Ltd., v. Government of Pakistan through the Secretary, Ministry of Food and Agriculture. Directorate-General of Food, Karachi.
' The Honourable Judge of this Court has observed as under:- "The award made on 20th August, 1983 has been filed in the Court pursuant to the provisions of section 14 (2) of the Arbitration Act, 1940 and rule of the Sindh Chief Court Rules (Original Side) by the arbitrator who has also prayed that the time for making the award be enlarged.
' At the very outset it may be mentioned that on behalf of the defendants an application under sections 30 and 33 of the Arbitration Act, 1940 was filed objecting to the making of the award rule of the Court. The said application however was struck off by the Additional Registrar (0.S.) by order passed on 28-5-1984 for non-payment of process fee.
' In view of above circumstances question has arisen for consideration as to whether the award which was made by the arbitrator beyond a period of 4 months after entering upon the reference, be made rule of the Court by enlarging the time as prayed for by the arbitrator."
' This authority of the Honourable Court on the face of it is quite different and distinguishable from the case, which is in hand.
' Here in this application a simple prayer has been made by the plaintiffs for extension of time so that the arbitration proceedings may be finalized. Neither award has been filed in this case nor has the Arbitrator requested for extension of time, therefore this authority, in any case, is not favourable to the case of Mr. Faiz Kazi Essa.
8. I have gone through the material placed on the record and I have also gone through the authorities cited by the learned counsel for the parties. The matter was referred to the Arbitrators on the application of the defendants and the Arbitrators have not finalised the matter. The suit was filed on 15-2-1989 and on 20th May 1990 the same was referred for arbitration. The opposition on behalf of the defendants, prima facie, shows that they want to linger on the matter unnecessarily.
For expeditious disposal of the matter this CMA is allowed with no order as to costs.
9. The arbitration proceedings should be completed by proceeding day to day within a period of four months. Adjournments to delay the matter should be avoided.