Bijitendra Mohan Mitra, J.@mdashThe present Revisional application is directed against an order passed by the learned District Judge at Port Blair dated 12th October, 1994 in Misc. Appeal No.l of 1994 reversing the Judgment and Order No. 11 dated 13th April, 1994 passed by the learned Senior Sub-Judge at Port Blair in O.S. No. 6 of 1994. The connected suit is for declaration, injunction, recovery of general average claim damages and compensation valued at U.S. $25,30,413,00 equivalent to Rs. 7,64,18,472.6Op. (RUPEES SEVEN CRORES SIXTY FOUR LAKHS EIGHTEEN THOUSAND FOUR HUNDRED SEVENTY TWO AND PAISE SIXTY ONLY). The said suit was filed on 7.3.1994 alongwith a petition for injunction and by an order dated 7.3.1994 the Trial Court passed an ad-interim order directing the defendant to remove cargo from the vessel M.V. Arti after furnishing sufficient Bank guarantee/security bond with security for the full amount within fifteen days from the date of service of the notice. Pursuant to the said order of ad-interim injunction the defendant appeared on 18.3,1994 and one K. Harish claiming himself to be constituted Attorney of the defendant had filed four petitions as follows :
(1) Petition under order 14 Rule 2 of the CPC praying for disposal of the suit in limine for want of jurisdiction,
(2) Petition u/s 151 praying for discharging the ad-interim order or alternatively or stay of proceeding.
(3) Petition u/s 3 of the Foreign Awards (Recognition and Enforcement) Act 1961.
(4) Petition u/s 34 of the Arbitration Act read with Section 151 of C.P.C.
2. The learned Trial Judge by a reasoned order dismissed all the above noted four petitions by a composite order. Being aggrieved by the same, an appeal was taken out before the Court of the learned District Judge at Port Blair in Misc. appeal No. 1/1994.
3. This Revisional Court will first deal with the portion of the order namely the petition under order 14 Rule 2 of the C.P.C. It is significant to mention at the very outset that order 14 Rule 2 has suffered a significant amendment by 1976 amendment of the C.P.C and now it has been specifically laid down that the Court may try an issue of law first only when it will relate to the jurisdiction of the Court or the same will be in the context of a bar to the suit created by any law for the time in force. In the Trial Court''s order a cryptic reference was made; about an affidavit affirmed by one K. Harish before the Trial Court sometime in the month of March, 1994 and the same has been attempted to be described as written statement in substance and/or in disguise. The nomenclature used by the trial court apparently appears to be an ingenuous expression, because the same has been contemplated in specific terms under order 8 Rule 1 of the C.P.C. In order to understand the connotation of order 8 Rule 1 that reference may be made to order 6 Rule 1 defining the meaning of the word ''pleading''. Order 6 Rule 3 envisages forms of pleading and they are to be read in consonance with order 48 Rule 3 of the C.P.C.
4. Mr. D.R. Parekh, learned Advocate appearing on behalf of the petitioner has tried to draw a line of distinction between the concept of formats of pleading and substance of pleading. According to the contention of Mr. Parekh, the substance of pleading is required to be looked into in terms of order 6 Rule 2 of the C.P.C. Apart from the question of compliance with the forms of pleadings, Civil Rules and orders contemplate the stages when written statement will be required to be filed. Normally, a date is required to be fixed for the purpose of filing written statement and it should be in terms of the form as contained in appendix -''A'' being supported by a proper verification. Pleadings are required to be supported by verification and verification is a compulsory part of a pleading otherwise it does not derive sanction. Unless a written statement is not in form then on the ground of mere technicality it may became defective. The question of appreciation of a pleading from the point of view of substance will only arise when formalities in presentation of written statement are complied with and order 6 Rule 2 of the C.P.C. will come into play only after filing of the written statement by the defendant in accordance with forum being support by a proper verification. As such this court cannot accept the suggestion of the affidavit of K. Harish to be treated as written statement nor can it be rated under the cover of an ingenuous nomenclature, namely, disguised written statement as per purported reference to be attributed by the Trial Court. It is significant to mention though this Court does not appreciate the reasoning offered by the Courts below but it apparently appears that unless issues are framed in terms of Order 14 Rule 1 of C.P.C after filing and reception of the pleadings of the respective parties, the question of entertainment of a petition under Order 14 Rule 2 does not and cannot arise. The circumscribed formula of order 14 Rule 2 will apply only when issues are discernible but not otherwise. Accordingly, the said petition under order 14 Rule 2 of C.P.C. filed by the defendant at the initial stage cannot be entertained as the same is a pre-mature one and on that score it is liable to be rejected.
5. The next question that permeates the controversy is about the provision of Section 3 of the Foreign Awards (Recognition and Enforcement) Act, 1961. The learned Courts below while dealing with the provisions of Section 3 of the said Act have over looked the pre-fix of Section 3 of the said Act, namely; "Notwithstanding anything contained in the Arbitration Act, 1940 or in the C.P.C .......... " which casts mandate upon the court to grant an order of stay of all the proceedings if satisfaction is recorded that agreement in question is a nullity or it is inoperative. In absence of the said finding, the role of play of discretion comes in and the Court may fall back upon Section 34 of the Arbitration Act. Section 34 makes it clear that the Court will exercise its discretion when the applicant was at all times and still ready and willing to do all things necessary for the proper conduct of arbitration and the Court can exercise discretion u/s 34 even to refuse stay when all other conditions mentioned therein are fulfilled or not. Section 34 enjoins upon the party to the Arbitration proceeding to apply u/s 34 either before firing written statement or taking any other steps in the proceeding which is laid down in the case of Food Corporation of India v. Yadav Engineering and Contract, reported in AIR 1982 SC 1302. Here the controversy rotates round the interpretation of the expression, "taking any other steps in the suit". In the backdrop of the same, this Court turns to the affidavit of K. Harish and in paragraph 2 of the said affidavit it has been averred in no uncertain terms that purpose of this affidavit is to counter all those issues which are likely to emerge as material preposition either on facts or in law. The controversy has been attempted to be raised about the general average security and on the question of lien. The further question that has been raised in the affidavit, i.e. about the frustration of contract which is one of the bone of contentions of the parties. In view of that matter, it appears that the contention of K. Harish goes to suggest that the defendants want to make an advanced progress even to the stage of issues before they were framed not to speak of taking steps in the direction for filing the written statement. The moment concept of issues has been canvassed in the affidavit about the material preposition of the fact and law likely to erupt in the vortex of controversy in the pending lis it cannot be said that defendant has: not taken any step in aid of the suit. The said affidavit is a sufficient testimony to warrant an inference that the averments contained therein being couched in the language of forensic expression of legal import about the controversy relating to the frustration of contract and general average damage and other ancillary questions raised cannot but lead to an irresistible inference that the defendant is very enthusiastic to take steps in aid of the suit. Accordingly, both the petitions as u/s 34 of Arbitration Act read with Section 151 C.P.C. as well as the petitions u/s 3 of Foreign Awards (Recognition and Enforcement) Act, 1961 stand rejected. The findings of the learned Judge of the Appeal Court granting stay of hearing of the suit is hereby upset for the foregoing reasons as the petition u/s 3 of the Foreign Awards (Recognition and Enforcement) Act, 1961 is misconceived and Section 34 of the Arbitration Act cannot be invoked as the affidavit of K. Harish indicate the steps being taken in aid of the suit.
6. The Trial court by a purported reference in a cryptical way has dismissed the petitions u/s 151 C.P.C by directing it as a written statement in substance and/or in disguise. Neither of the Courts can deal with the said petition u/s 151 of the C.P.C. in such perfunctory manner by way of misplaced reference and, as such the petition u/s 151 of the C.P.C. filed by the defendant is directed to be re-heard within a reasonable time by the Trial Court in accordance with law. The orders passed by the District Judge accordingly stand superseded by the instant order and the same is not found sustainable save and except an order of remand for re-hearing of the petition u/s 151 of C.P.C praying for discharging the ad-interim order or alternatively for stay of proceeding. AH the three other petitions as referred to above will stand dismissed. The revisional application thus succeeds and stands disposed of in the light of the observations indicated hereinbefore.
7. There shall be, however, no orders as to costs.
