JUDGMENT Das, J. - This is an application on the part of Sree Luchminarain Jute Manufacturing Co., Ltd. (hereinafter referred to as the Applicant) for stay of all further proceedings in the matter of the application made by Balabux Agarwalla and others (hereinafter referred to as the Respondents) under sec. 33 of the Indian Arbitration Act. The interesting questions discussed on this application appear to be of first impression and not covered by any previous judicial decision on them. The facts shortly are as follows:-- By two several contracts in writing dated March 23, 1946, and March 25, 1946, respectively the Respondents in their trading name of Gobordhonedas Sagarmull agreed to sell and the applicant agreed to buy two lots of jute upon terms and conditions contained in the said contracts. The delivery periods were October and/or November, 1946, tinder the first contract and September to November, 1946, under the second contract. Each of the contracts contained an arbitration clause in the following terms:-- All matters, questions, disputes, differences and/or claims arising out of and/or concerning and/or in connection with and/or in consequence of or relating to the contract whether or not the obligation of either or both the parties hereto under this contract be subsisting at the time of such dispute and whether or not this contract has been terminated or purported to be terminated or completed shall be referred to arbitration of Bengal Chember of Commerce under the rules of its Tribunal of Arbitration for the time being in force and according to such rules the arbitration shall be conducted 2. In the beginning of September, 1946, the Respondents expressed their inability to deliver the goods and requested the applicant to cancel the contracts and to bill for the differences on the basis of the market rate then prevailing. The applicant declined to do so and insisted on the contracts being performed by delivery. The Respondents not having delivered the goods the applicant referred the disputes under both the contracts to the arbitration of the Bengal Chamber of Commerce. 3. The Respondents replied by filing a suit being Suit No. 1887 of 1946 in this Court. The applicant declined to do so and insisted on the contracts being performed by delivery. The Respondents not having delivered the goods the applicant referred the disputes under both the contracts to the arbitration of the Bengal Chamber of Commerce. 3. The Respondents replied by filing a suit being Suit No. 1887 of 1946 in this Court. It was alleged in the plaint that the said contracts were entered into when the Jute Price Control Order, 1945, was in force and that it was expected as it was well-known and assumed by the parties that the said order which was due to expire on the 30th September, 1946, would be continued and kept in force at least up to the delivery periods under the said contracts and that the parties entered into the said contracts on such expectation and assumption as the very basis thereof. The Jute Price Control Order, however, was not extended beyond the 30th September, 1946. It was submitted in the plaint that upon the lapse of the said order the contracts automatically came to an end on the principle of frustration and the parties were discharged from further performance of the contracts without any liability. An alternative case was purported to be formulated that both the parties to the contracts were under a mistake as to a matter of fact essential thereto, namely, that the Jute Price Control Order would be extended as aforesaid and that the said contracts were void. It was prayed that it be declared that the said contracts were or had become void and for other reliefs. 4. The applicant on being served with the writ of summons in the said suit made an application for stay of the said suit under sec. 34 of the Indian Arbitration Act, 1940. It was prayed that it be declared that the said contracts were or had become void and for other reliefs. 4. The applicant on being served with the writ of summons in the said suit made an application for stay of the said suit under sec. 34 of the Indian Arbitration Act, 1940. The Respondents resisted that application for stay on a variety of grounds, namely, (1) that the contracts having terminated by frustration the arbitration clauses also ceased to operate, (2) that even if the arbitration clauses subsisted they were not wide enough to cover the disputes as to whether the contracts had come to an end by frustration, (3) that the parties having been under a mutual mistake as aforesaid the contracts were void ab initio and consequently there never was any arbitration agreement, (4) that the disputes involved difficult questions of law which should not be referred to laymen but should be tried by the Court and (5) that inasmuch as the persons on the pannel of arbitrators compiled by the Bengal Chamber of Commerce or the firms or companies they represented were influential members of the Chamber and being buyers of jute were interested to see that the decision went against the sellers and as in the premises the sellers could not expect justice from such a tribunal the Court should in exercise of its discretion refuse to stay the suit. 5. During the pendency of that application for stay and apprehending that the suit may be regarded as misconceived and not maintainable in view of the provisions of sec. 32 of the Indian Arbitration Act the Respondents made a substantive application under sec. 33 of that Act for an order that (1) the arbitration agreement in the said contracts be declared void and/or not in existence and (2) the effect thereof be determined. 6. The applicant in its turn has now applied under sec. 34 for stay of all further proceedings in the Respondents' last mentioned application. 7. The Respondents resist this application for stay on the same five grounds on which they resisted the application for stay of their suit as also on the additional ground that sec. 34 cannot be invoked for staying this application. 8. 34 for stay of all further proceedings in the Respondents' last mentioned application. 7. The Respondents resist this application for stay on the same five grounds on which they resisted the application for stay of their suit as also on the additional ground that sec. 34 cannot be invoked for staying this application. 8. The application for stay of the Respondents' suit was heard by me along with several other applications for stay of several other suits of the same nature and was disposed of by the judgment I delivered on Thursday last. I came to the conclusion for reasons stated in my judgment, (1) that even if the termination of the contracts by frustration might, on the authority of Hirjee Mulji case L.R. (1926) A.C. 495 and notwithstanding the decision in Heyman v. Darwins L.R. (1942) A.C. 358 destroy an ordinary arbitration clause the arbitration clauses in these contracts were couched in such wide terms as excepted them out of the results of frustration; (2) that these arbitration clauses were wide enough to cover the disputes as to whether the contracts had come to an end by frustration; (3) that the alternative case as formulated, did not really amount to a plea of mutual mistake rendering the contracts void ab initio, so as to make the arbitration clauses also inoperative and ineffective; (4) that the doctrine of frustration was not too difficult for commercial arbitrators to appreciate or apply and that the fact that questions of law were involved in the disputes was not by itself a sufficient ground for refusing a stay particularly when the questions of law were dependent on facts; and (5) that there was no evidence of bias or adverse interest of the arbitrators on which the Court could act and refuse the stay. I held that the points raised did not constitute sufficient reasons why the matters should not be referred to arbitration and accordingly I acceded to those applications and stayed the several suits. The reasons adopted and the conclusions arrived at by me on those applications apply mutatis mutandis to the same five points also raised in this application and I need not recapitulate the same in any greater detail. Suffice it to say that I adhere to my previous decisions on those points. I now proceed to deal with the additional point raised in this application. 9. Mr. Suffice it to say that I adhere to my previous decisions on those points. I now proceed to deal with the additional point raised in this application. 9. Mr. B.C. Ghose appearing for the Respondents formulated the additional point in two ways. In the first place he contended broadly that sec. 34 could not under any circumstances be invoked for staying a proceeding under sec. 33. His argument was that all questions relating to the existence, validity or effect of an arbitration agreement or an award must always be decided by the Court and not by an arbitrator. He referred me to sec. 31 (2) in support of his contention that all questions regarding the validity, effect or existence of an award or an arbitration agreement must be decided by the Court in which the award under the agreement had been or might be filed and by no other Court, e.g., by an arbitrator. Learned Counsel then passed on to sec. 33 and pointed out that a party to an arbitration agreement desiring to challenge the existence or validity of an arbitration agreement or an award must, under that section, apply to the Court and he could not go to an arbitrator. The contention was that these two sections peremptorily laid down that it was the Court and Court alone which had jurisdiction to decide all questions as to the existence, effect or validity of an arbitration agreement or an award and that an arbitrator had no jurisdiction to decide any of these questions under any circumstances. Mr. Ghose interpreted the words "no other Court" as excluding also an arbitration tribunal. He concluded that in the premises there could be no valid agreement to refer any of these questions to arbitration and consequently there could be no occasion or reason or scope for the application of sec, 34. I am unable to accept Mr. B.C. Ghose's contention so broadly stated or his interpretation of secs. 31 and 33 of the Indian Arbitration Act. 10. It was laid down as far back as 1584 in Heydon's case 3 Co. Rep. I am unable to accept Mr. B.C. Ghose's contention so broadly stated or his interpretation of secs. 31 and 33 of the Indian Arbitration Act. 10. It was laid down as far back as 1584 in Heydon's case 3 Co. Rep. 7a that: For the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of common law) four things are to be discerned and considered :-- 1st--What was the common law before the making of the Act 2nd--What was the mischief and defect for which the common law did not provide. 3rd--What remedy Parliament hath resolved and appointed to are the disease of the common wealth and 4th.--the true reason of the remedy, and than the office of all the Judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief, and pro prevato (sic), and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bona (sic) 11. More than three centuries later Lindley, M.R., in In re Mayfair Co. (1998) 2 Ch. 28 which was concerned with the interpretation of the Companies Act, 1879, observed: In order properly to intetpret any statute it is as necessary now as it was when Lord coke reported Heylons case 3 Co. Rep. 7a to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief. 12. The Indian Arbitration Act, 1940, is, as its title and preamble indicate, an Act not only to consolidate but to amend the law relating to arbitration. It is well-known that the law of arbitration in India was in a very unsatisfactory state. There were really two parallel systems, one for the Mofussil India to be found in the CPC and the other for the Presidency towns, the centres of trade and commerce, to be found in the Indian Arbitration Act, 1899. The glaring defects of our arbitration law were adverted to by the Civil Justice Committee in Chapter XIII of their report. There were really two parallel systems, one for the Mofussil India to be found in the CPC and the other for the Presidency towns, the centres of trade and commerce, to be found in the Indian Arbitration Act, 1899. The glaring defects of our arbitration law were adverted to by the Civil Justice Committee in Chapter XIII of their report. The devices resorted to by dishonest debtors who had entered into arbitration agreements or against whom awards had been made are fully illustrated by actual cases referred to in the Report of that Committee. The state of affairs disclosed in that Report was nothing short of a scandalous abuse of the process of the Court. The Committee recommend in para. 13 of that Chapter that what was most required was that in the case of every arbitration one Court and one only should be the forum in which all questions relating to the validity of the award should be finally determined. This was designed to prevent a judgment-debtor under an award filed in Court, say in Calcutta, from taking proceedings for challenging the existence or validity of the arbitration agreement or the award, say in Assam where the award might have been transmitted for execution. In paragraph 18 of that Chapter the Committee recommended that every Court acting under the Arbitration Act should be empowered to require all applications to set aside awards, on whatsoever grounds, to be made by motion on affidavit evidence, it being open to the Court, if it thought necessary (e.g., in a case where allegations of fraud were made) to give facilities for oral evidence and discovery. This was designed to avoid the inevitable delays of a regular suit. These, in short, were some of the mischiefs adverted to and the remedies recommended by the Civil Justice Committee. Accordingly in the new Arbitration Act of 1940, secs. 31, 32 and 33 which were quite new sections were inserted to give effect to the aforesaid recommendations of paras. 13 and 18 of Chapter XIII of the Report of the Civil Justice Committee. In interpreting secs. 31, 32 and 33 we must remember these mischiefs which were sought to be remedied by them. 13. Turning to the Act, sec. 31, 32 and 33 which were quite new sections were inserted to give effect to the aforesaid recommendations of paras. 13 and 18 of Chapter XIII of the Report of the Civil Justice Committee. In interpreting secs. 31, 32 and 33 we must remember these mischiefs which were sought to be remedied by them. 13. Turning to the Act, sec. 2 (c) defines "Court as meaning a Civil Court having jurisdiction to decide the questions forming the subject-matter of the reference if the same had been the subject-matter of a suit. Sec. 31 (1) permits an award to be filed in any Court having jurisdiction in the matter to which the reference relates. Sec. 31 (2) provides that certain specified questions shall be decided by the Court in which the award has been or may be filed and by no other Court. Sec. 31 (3) enjoins that all applications regarding the conduct of arbitration proceedings or otherwise arising out of such proceedings shall be made to the Court where the award has been or may be filed and to no other Court. So far these sub-sections eliminate the jurisdiction of all Courts other than those where the award has been or may be filed, there is still a choice of forum, for the award may be filed in any Court having jurisdiction in the matter to which the reference relates. Then comes sub-sec. (4). By that sub-section the forum is determined by the first application made to a Court in relation to a reference. After the first application is made to a Court having jurisdiction all future proceedings must be in that Court alone and in no other Court. Sub-secs. (2), (3) and (4) indicate, that as between several Courts each of which may otherwise have jurisdiction in that matter, a particular Court must be resorted to, if proceedings are at all to be taken in a Court relating to an arbitration matter. This gives effect to the recommendations of the Civil Justice Committee in Chapter XIII, para. 13 of their Report. Sec. 32 bars suits challenging the arbitration agreement or an award. Sec. 33 prescribes only the forum in which the legal proceedings are to be taken in a Court of law in respect of the specified matter, namely, that it must be in the form of an application and not by way of a regular suit. 13 of their Report. Sec. 32 bars suits challenging the arbitration agreement or an award. Sec. 33 prescribes only the forum in which the legal proceedings are to be taken in a Court of law in respect of the specified matter, namely, that it must be in the form of an application and not by way of a regular suit. These provisions give effect to the recommendations of para. 18 of Chapter XIII of the Civil Justice Committee's Report and are in keeping with the salutary principle that the law of arbitration should provide simple, speedy and cheap settlement of differences. Sec. 31 (2) or sec. 33 nowhere says that such disputes as are mentioned therein must always be decided by the Court as opposed to an arbitrator. The words used are "no other Court" and not "no other tribunal." Indeed these sections are not dealing with jurisdiction of arbitrators at all. What they are concerned with and do say is that if proceedings on certain questions are at all to be taken in Court they must be taken in the particular Court and in the particular form prescribed by those sections respectively and in no other Court or in no other form. They do not say that disputes of the nature specified in those sections can never form the subject-matter of an arbitration agreement. Take the very case I am now dealing with. Was there anything to prevent these parties, after the present disputes had arisen, from entering into a fresh arbitration agreement referring these very disputes relating to the existence or validity of the arbitration clauses in the old contracts to arbitration instead of coming to this Court under sec. 33? Likewise if after an award has been made disputes arise as to its validity or effect is there anything in these sections which expressly prevents the parties from entering into a fresh arbitration agreement? Arbitration agreement is defined in sec. 2 (a) as meaning a written agreement to submit present or future differences to arbitration. Disputes relating to validity, etc., of an arbitration agreement or an award is clearly such a difference. There is nothing in secs. 31 or 32 or 33 which in terms excludes arbitration proceedings or limits the capacity of parties to enter into a fresh arbitration agreement. Disputes relating to validity, etc., of an arbitration agreement or an award is clearly such a difference. There is nothing in secs. 31 or 32 or 33 which in terms excludes arbitration proceedings or limits the capacity of parties to enter into a fresh arbitration agreement. I do not think the words "Court" and "no other Court" have been used with a view to exclude an arbitral tribunal at all. As I have explained those words have been used only to emphasise that if legal proceedings are to be taken at all they must be taken in a particular Court and in the form of an application so as to avoid the mischiefs pointed out by the Civil justice Committee. Those sections in terms only exclude the jurisdiction of all other Courts and bar a regular suit. They do not forbid arbitration at all. If arbitration is still open, as I think it is, then it follows that if proceedings are taken under sec. 33 in contravention of such fresh arbitration agreement, sec. 34 may be invoked to compel the contumacious party who seeks to evade his arbitration agreement to go to arbitration agreement. Further even if there could be any doubt the words "save as otherwise provided in this Act" in sec. 31 (2) and the words "otherwise than as provided in this Act" in sec. 32 clearly remove such doubt for they expressly prescribe the right to go to arbitration. Those words will also permit the application of sec. 34 if the legal proceedings under sec. 33 are in respect of matters agreed to be referred. In my judgment the extreme and broad proposition formulated by Mr. B.C. Ghose that questions regarding the validity, effect or existence of an award or an arbitration agreement can never be referred to arbitration but must always be decided by the Court as distinct from an arbitrator and that consequently sec. 34 which presupposes a valid and subsisting arbitration agreement can, under no circumstances, be invoked for staying proceedings under sec. 33 cannot be supported. 14. Mr. B.C. Ghose then formulated a narrower and more specific objection, namely, that having regard to the scope of the particular proceedings and the facts of this case it cannot be stayed under sec. 34. I am prepared to accept the proposition thus formulated and for the following reasons. Under sec. 33 cannot be supported. 14. Mr. B.C. Ghose then formulated a narrower and more specific objection, namely, that having regard to the scope of the particular proceedings and the facts of this case it cannot be stayed under sec. 34. I am prepared to accept the proposition thus formulated and for the following reasons. Under sec. 34 the Court may, on the fulfilment of certain conditions, stay a legal proceeding. The commencement of legal proceedings in respect of matters agreed to be referred is one of those conditions. This condition contemplates a valid and subsisting arbitration agreement covering the disputes. On an application for stay, therefore, the Court, before it can exercise its discretion to stay, must be satisfied that there is such an arbitration agreement. Take the suit filed by the Respondents in which the present applicant made an application for stay. In that suit the Respondents prayed for a declaration that the contracts were or had become Void and for cancellation thereof and alternatively for declaration of the rights of the parties thereunder. The disputes involved in that suit related to the substantive rights and obligations of the parties under those contracts. The contention was that the contracts had come to an end and the parties had been discharged from further performance without any liability. Before I could stay that suit I had to be satisfied that there was a valid and subsisting agreement to refer those disputes to arbitration. The matters in issue in that suit were the respective rights and objections of the parties under the contracts in the event that had happened. The question on the application for stay of that suit was whether those matters had been agreed to be referred, that is to say, whether there was a valid and subsisting arbitration clause covering those matters even after the alleged frustration. The validity or existence of the arbitration clause was not as such the subject-matter of the suit but had to be decided on the application for stay for otherwise that application could not be decided. It is true that the existence of the arbitration clause was challenged on the very same grounds on which the existence of the contracts were impugned. It is true that the existence of the arbitration clause was challenged on the very same grounds on which the existence of the contracts were impugned. On that application the Court did not and indeed could not decide whether the contracts had come to an end, for that was one of the disputes in the suit and was to be decided by the Court at the hearing or by the arbitrator if the suit was stayed. But the Court had to decide whether that dispute was covered by the arbitration clause. Assuming all the facts in favour of the Respondents it was possible to decide that even if the contracts, came to an end as alleged the arbitration agreement did not for it was couched in such language as excepted it out of the results of frustration and it was wide enough to cover the question of the termination of the contract. That decision only enabled the Court to exercise its discretion to stay the action. The questions in dispute in the suit remained untouched by that decision. The suit having been stayed that question, namely, whether the contracts came to an end by reason of frustration will have to be decided by the arbitrator. But the position on the present application appears to me to be entirely different. Secs. 31 (2) and 33 refer to questions regarding the validity, effect or existence of an arbitration agreement or an award. Disputes regarding the validity or effect of an award may only arise after an award has been made. After making the award the arbitrator becomes functus officio unless the Court remits the award to him. In such a case the subsequent dispute as to the validity or effect of the award will not ordinarily be within the arbitration clause and if, a party applies to Court challenging the award under sec. 33, that proceedings will not ordinarily be stayed under sec. 34 on the strength of the old arbitration agreement. But if, after disputes arise regarding the validity of the award, parties choose to enter into a fresh arbitration agreement to refer such disputes to arbitration and a party in contravention of such fresh arbitration agreement applies to Court under sec. 33 challenging the award sec. 34 may clearly be invoked. 34 on the strength of the old arbitration agreement. But if, after disputes arise regarding the validity of the award, parties choose to enter into a fresh arbitration agreement to refer such disputes to arbitration and a party in contravention of such fresh arbitration agreement applies to Court under sec. 33 challenging the award sec. 34 may clearly be invoked. I do not pursue the matter further for in this case there has been no award and no fresh arbitration agreement. The present disputes are regarding the validity, effect and existence of the original arbitration agreement and the application of the- Respondents under sec. 33, which is being sought to be stayed by the present application under sec. 34, relates to such disputes only. The prayers are that (1) the arbitration agreement, in the contracts be declared void and/or not in existence and (2) the effect thereof be declared. The disputes as to the substantive rights of the parties under the contracts, namely, whether the contracts were expressly entered into on the basis of the continuation of the Jute Price Control Order or in circumstances from which the Court will infer an impelled term to that effect, whether there has been a frustration of adventure by reason of the non-continuance of that order, whether the parties have been relieved, by reason of such frustration, from further performance of the contracts without any liability, what are the rights and obligations of the parties if there has been no frustration and so on, are not the subject-matter of the Respondents application under sec. 33 as they were the subject-matter of their suit which has been stayed. The only subject-matter of the Respond dents' application under sec. 33 is the question of the validity, effect or existence of the arbitration agreement, contained in the original contracts. The question is whether such a limited application can possibly come within the operation of sec. 34. I see serious objections to its application. In the first place, sec. 34 presupposes a valid and subsisting agreement to refer and on an application under that section the Court must be satisfied that a valid arbitration agreement exists. The decision of that question against the Respondents will alone give jurisdiction to the Court to make an order for stay of the application. To decide that question in the application for stay under sec. The decision of that question against the Respondents will alone give jurisdiction to the Court to make an order for stay of the application. To decide that question in the application for stay under sec. 34 will in effect be to decide the whole of the Respondents' application under sec. 33, for that is the only subject-matter of that application. On the decision of that question against the Respondents, nothing will remain of their application under sec. 33 and a stay will be superfluous or meaningless. The matter does not rest there. Suppose I accede to the present application and the proceedings in the application under sec. 33 is stayed under sec. 34 which can only be on the footing that an arbitration agreement exists, what will be the result? Logically the matters in dispute in the application under sec. 33 will have to go before the arbitrator for decision. The Court will thus in effect call upon the arbitrator to decide the question of his own jurisdiction which, as I have said, he has no power to do. Further such a reference will really amount to calling upon the arbitrator to decide over again the question which the Court has already decided, for it can only order a stay on a finding that a valid arbitration agreement subsists. Suppose the arbitrator decides that there is no valid arbitration agreement subsisting. A situation more embarrassing is difficult to imagine. It, therefore, appears to me that when the subject-matter of an application under sec. 33 only relates, as the Respondents' application does, to questions regarding the validity, effect or existence of the arbitration agreement sec. 34 cannot, of necessity, be invoked, unless there be a fresh arbitration agreement to refer those very disputes regarding the validity, effect or existence of the previous arbitration agreement. If there be such a new arbitration agreement, about the validity, effect or existence of which there is no dispute, and yet a party commences proceedings challenging the validity, effect or existence of the old arbitration agreement, sec. 34 may be invoked to stay those proceedings so that the disputes as to the existence, validity and effect of the old arbitration agreement may be referred to the arbitration in terms of the fresh arbitration agreement. 34 may be invoked to stay those proceedings so that the disputes as to the existence, validity and effect of the old arbitration agreement may be referred to the arbitration in terms of the fresh arbitration agreement. In the absence of such a fresh arbitration agreement it is not possible to invoke Sec. 34 for staying a proceeding under sec. 33 where the only dispute is as to the validity, effect or existence of the old arbitration agreement. To do so will be to invite the Court to decide the very application under sec. 33, and the result of the decision against the party applying under sec. 33 will be that there will be nothing left to go before the arbitrator. On the other hand if upon the stay the matter is referred to the arbitrator, the latter will in effect be called upon to assume arbitral jurisdiction for deciding his own authority. Further the arbitrator will in such a case be called upon to decide the question which has already been decided by the Court and may conceivably come to a decision inconsistent with the decision of the Court. In any view of the matter a situation will arise which cannot for a moment be countenanced. For reasons stated above I find myself in agreement with Mr. B.C. Ghose on his second point, namely, that having regard to the nature and scope of this particular application of the Respondents under sec. 33 which challenges the validity, effect and existence of the arbitration clause in the contracts and there being no fresh arbitration agreement referring the disputes as to the validity, etc. of the old arbitration agreement, sec. 34 cannot be invoked and this application must be dismissed with costs.