A. I. R 1918 Calcutta 318 ::(1918) 22 Cal WN(81) 362 ::1918 (22) Cal WN 362 ::(1918) 44 Ind Cas 279

Calcutta High Court

Hon'ble Judge(s): Fletcher, Shamsul Huda , JJ

Specific Relief Act (1 of 1877) , S.21— Per Fletcher, J.; Shamsul, Huda, J. Dissenting. - Agreement to refer to arbitration - Mere filing of suit is not refusal on part of plaintiff to perform his contract - Suit is not barred by provision to S. 21. Per Fletcher, J. (Shamsul Huda, J. dissenting). The mere filing of a suit by a plaintiff who has entered into an agreement with the defendant to refer the matter in dispute to arbitration is not a refusal on his part to form his contract within the meaning of S. 21, Specific Relief Act. The plaintiff and the defendants who were brothers entered into a registered agreement whereby to avoid litigation, they agreed to refer their dispute to arbitration. The plaintiff, however, shortly afterwards instituted a suit in respect of the matter covered by the agreement; Held. per Fletcher, J. - That the suit was not barred by the proviso to S. 21, Specific Relief Act. inasmuch as its mere institution did not amount to a refusal within the meaning of that section. Per Shamsul Huda, J. - That the institution of the suit amounted to a refusal on the part of the plaintiff to perform the contract he had entered into to have the dispute settled by arbitration instead of by suit, so that the suit was barred by the proviso to S. 21, Specific Relief Act. .....