Grover ( 1 ) THE plaintiff-respondent, Shah Construction Company Limited, instituted a suit for recovery of Rs. 7,04,86976 np. against the defendant-appellant the Munidnal Corporation of Delhi. The Court issued summons for appearance of the defendant and for filing of the written statement for 23rd December, 1984. On 23rd December, 1964 two lawyers, namely Shri R. M. Maha Jan and Shri S. K. Gupta appeared on behalf of the defendant rind, according to the order of the Court, asked for time to file a written statement. The Court granted time till 5th January, 1965. On 5th January, 1965 a witten statement was filed through Shri R. M. Mahajan, Shri S. S. Shnkla, Shri S. K. Gupta and Shri M. N. Pombra, Advocates. Preliminary objection No. 1 was in the following terms:- "that this Hon ble Court has no jurisdiction to entertain this suit as the parties have agreed by an agreement that any matter in case there is any dispute regarding the contract in the suit the same will be decided by referring the matter to the Arbitrator and hence the plaintiffs ought to have referred the matter to arbitration and not to have filed the suit. The suit is liable to be dismissed on this ground alone". The written statement, as filed, shows that a complete reply on the merits was given, apart from another preliminary objection having been taken that the suit was haired by time under section 478 (2) of the Delhi Municipal Corporation Act. Taking the preliminary objection raised above as a plea under section 34 of the Arbitration Act, the learned Subordinate Judge framed a preliminary issue; Whether the suit was liable to be stayed under that provision? After considering the various authorities which were relied upon by the learned counsel for the parties it has been held that that the act of the defendant asking for time to file the written statement amounts to a step in the proceedings and as such the suit was not Hable to be stayed under section 34 of the Arbitration Act. It was also noticed that the plea as raised in the preliminary objection could not be treated to be an application for stay under section 34. ( 2 ) MR. K. K. Raizada. It was also noticed that the plea as raised in the preliminary objection could not be treated to be an application for stay under section 34. ( 2 ) MR. K. K. Raizada. who appears for the defendant-appellant, contends that when the counsel made a request for an adjournment for filing the written statement on 23rd December, 1964 the were not authorised by means of any power of attorney or other document to represent the defendant or to act or appear on its behalf. If they asked for an adjournment in such circumstances it would amount to asking for time for filing a written statement. He has relied on Punjab State v. Moji Ram in support of his submission. In that case Bishan Narain J. said that it would depend on the circumstances in each case whether a particular application to Court amounted to a step in proceedings or not and no absolute test could be laid down. However, where an application had not been made by the defendant or under his authority for adjournment, it could not be said that any step had been taken of the nature contemplated by section 34 of the Arbitration Act. In that case in a suit against the Government, the Government Pleader appeared on a date fixed for the appearance of the defendant. He represented voluntarily and without any authority and asked for adjournment for filing of the written statement on the assumption that he would in due course receive instructions. It was held that the defendant could not be regarded as having taken any step in the proceedings. The le. irned Judge relied or Shiv Chandra Bhur v. Md. lbrahim and Nuruddin Abdulhusein v. Abu Ahmed Abdul Jalli* which have also been pressed into service by Mr. Raizada. ( 3 ) IT is significant that it was never pointed out to the learned Judge below that Sarvshri Mahajan and Gupta had no authority to represent the defendant on 23rd December. 1964 and ask for an adjournment nor was this matter agitated in the grounds of appeal. It is not open therefore, to Mr. Raizada to take up this matter for the first time before this Court. 1964 and ask for an adjournment nor was this matter agitated in the grounds of appeal. It is not open therefore, to Mr. Raizada to take up this matter for the first time before this Court. At any rate, even if it be assumed, as has been pointed out from the power of attorney which is on the record and which was presented on 5th January, 1965, that the counsel were not authorised to represent the defendant on 23rd December, 1964, the fact remains that the written statement was subsequently duly filed and no prayer was made before filing it or even in the objection which was raised in it asking the Court to stay its hands and decide whether the suit should be stayed under section 34 in view of the alleged arbitration agreement. Section 34 lays down in categorical terms that where any party to an arbitration agreement commences any legal proceedings against any party to the agreement then any party to such legal proceedings may at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings. The Court then may stay the proceedings if it is satisfied th there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement but another matter on which the Court has to be satisfied is that the applicant was, at the time when the proceedings were commenced and even later remains, ready and willing to do all things necessary to the proper conduct of the arbitration. In the present case no application was made either orally or in writing by the appellant before the filing of the written statement asking the Court to stay the proceedings, nor was it stated any where even in the written statement that the defendant was ready and willing to do all things necessary to the proper conduct of the arbitration. The preliminary objection, which has been extracted does not satisfy any one of the conditions which are the pre-requisite for the exercise of discretion under section 34 and it is not possible to see how any Court could decide in favour of the appellant in the circumstances of the present case. Indeed, the point, which has no. The preliminary objection, which has been extracted does not satisfy any one of the conditions which are the pre-requisite for the exercise of discretion under section 34 and it is not possible to see how any Court could decide in favour of the appellant in the circumstances of the present case. Indeed, the point, which has no. v been raised, was sought to be raised in the preliminary objection as a jurisdictional issue on which the suit, according to the written statement, was liable to be dismissed. It is well settled, and there can be no dispute about the proposition, that the existence of an aroitration agreement does not take away the jurisdiction of the Civil Court to decide an action of the present nature and all that can be dine is thit if such an agreement has been entered into and a party desires to have the matter decided by arbitration it can apply to the Court to stay the proceedings in the suit under section 34. The Court would ordinarily, if all the conditions of section 34 are fulfilled, stay the suit in sound exercise of judicial discretion but in certain well defined types of cases it may even decline to stay the suit and, therefore, it can never be said that the suit is to be dismissed merely because of the existence of an arbitration agreement. ( 4 ) MR. Raizada has laid a great deal of emphasis on the test laid down by Tendolkar J. in Nurwidin Abdulhusein v. Abu Ahmed Abdul Jalli the test being whether the act of the defendant displays an unequivocal intention to proceed with the suit and to give up the right to have the matter disposed of by arbitration. The facts in the Bombay case were different and to my mini in the present case alt the essential conditions laid down by section 34 have not been fulfilied. These are - (A) The appellant never applied either orally or in writing to the learned Subordinate Judge before filing the written statement or taking any other step in the proceedings to stay the proceedings under section 34. These are - (A) The appellant never applied either orally or in writing to the learned Subordinate Judge before filing the written statement or taking any other step in the proceedings to stay the proceedings under section 34. (b) There was no plea much less any material on which the Court could be satisfied that the appellant was at the time when the proceedings were commenced or later remained ready and willing to do all things necessary to the proper conduct of the arbitration. I would, therefore, dismiss this appeal, bat in the circumstances leave the parties to bear their own costs.