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Civil Petition for Special Leave to Appeal No. K‑109 of 1975, decide on 22nd October 1975.

(On appeal from the judgment and order of the High Court of Sin & Baluchistan, dated 28-8‑11975 to Appeal 32 of 1975).

Arbitration Act ( X of 1940)‑‑

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‑‑ S. 33‑Arbitration agreement, questioning of ‑High Court refusing to stay proceedings pending before arbitration tribunal but ordering non‑implementation of award, if any, in country, without leave of Court‑‑Contention that arbitration agreement not being properly stamped could not be acted upon, due to its admissibility and could not form basis for assumption of jurisdic tion by International Court of Arbitration‑Question still being sub judice before High Court, contention, held, untenable‑Matter of stay of proceedings ‑Entirely within discretion of High Court Mere admission of appeal‑Not per se sufficient ground to order suspension of proceedings‑No interference of Supreme Court, in view of rider in High Court's order, held, in circumstances, called for. [Stay of proceedings‑Appeal (Civil)]

S.A. Nusrat, Advocate Supreme Court instructed by S. M. Hanif, Advocate‑on‑Record for Petitioner.

Saleem Akhtar, Advocate Supreme Court instructed by Ismail Tejani, Advocate‑ on‑Record for Respondent No. 1.

Nemo for Respondents. Nos. 2 and 3.

Date of hearing ; 2nd October 1975.

‑This petition is from the order of a Division Bench of the High Court at Karachi refusing to stay proceedings before the Arbitration Tribunal comprising respondents 2 to 4 during the pendency of the Letters Patent Appeal in the High Court subject however, to the condition that "the award, if any, will not be implemented in tile country without leave of the Letters Patent Bench.

Arising out of fin agreement for the supply of goods which contained an arbitration clause, there has arisen a dispute between the petitioners and the first respondent herein. Under the terms of the agreement, the latter, which has its registered office in New York offered to purchase 22,000 tons of chrome ore from the petitioners. The agreement provided, inter alia, for reference of any dispute between the parties arising out of the agreement, to two arbitrators and an umpire at Karachi, subject, however, to the condition that "in case of an arbitrator and or an umpire not being appointed during the time specified or in case of his refusal or inability to accept, the case will be referred to the Arbitration Court of the International Chamber of Commerce in Paris". It appears that the first respondent pursuant to the above default clause has referred the matter to the Court of Arbitration of International Chamber of Commerce and the matter is pending before respondents 2 to 4.

The petitioner however, moved an application under section 33 of the Arbitration Act, 1940 calling in question the existence, validity and the effect of the arbitration agreement between the parties and further the International Chamber of Commerce at Paris had no jurisdiction to entertain the claim of the first respondent against the petitioners. The matter was board by a learned Single Judge who dismissed the application by order dated 16‑6‑1975 against which a Letters Patent Appeal has been admitted in the High Court. It appears that the petitioner moved a miscellaneous application to restrain respondents 2 to 4 from proceeding with the arbitration during the pendency of the Letters Patent Appeal which however, as pointed out iii the beginning was refused by the Letters Patent Bench subject to the rider as aforesaid.

In support of the petition, petitioners learned submitted that the arbitration agreement not being properly stamped lira inadmissible and therefore could not be acted upon much less form a basis for the assumption of jurisdiction by the International Court of Arbitration at Paris. This argument is untenable at this at for that question is still sub judice before the Letters Patent Bench slid this petition is against the refusal by the Letters Patent Bench to suspend the proceedings before 2 to 4.' It can scarcely be controverted that matter lay entirely within the discretion of the Letters Patent Bench and the fact that the affil against the order of the learned Single Judge has been admitted per se is scarcely a sufficient ground to order suspension of the arbitration proceedings In any event, no illegality has been pointed out by petitioner learned counsel. Further, because of the rider in the concluding paragraph of the impugned order staying the execution of the award, if ally. delivered in the meantime, no interference by this Court on any discoverable principle called for.

Petition dismissed.

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