JUDGMENT 1. - Mr. V.N. Soral, M/s. Magan Behari Lal and Co. and M/s. Premier Paper and Board Mills, each, instituted a suit against the Rajasthan Chamber of Commerce and Industry, Jaipur (hereinafter referred to as the Chamber), its office bearers, its members of the Managing Committee and its Associate Members for declaration and injunction. In each suit, the defendant for stay of the suit proceedings. The learned Additional District Judge No. 1, Jaipur City, in whose court the suits were instituted, rejected the applications under section 34 vide a single order dated October 22, 1975 in all the three suits. Dissatisfied with the said order the defendant appellants have preferred these three appeals. Since all the three appeals are based on similar facts and involve common questions of fact and law, they are being disposed of together by this judgement. 2. The facts narrated in the plaint filed by Mr. V.N. Soral are like this. Mr. V.N. Soral has alleged that he is an ordinary member of the Chamber which is a company duly registered and incorporated under the Companies Act, 1956. The objects of the Chamber are contained in the Memorandum of the Chamber. The Articles of Association of the Chamber deal with various subjects such as categories of membership, subscription fee, admission fee, payment of subscription, application for membership, privileges of the members, termination of membership, authorised representative of members etc. etc. It is further alleged that the business of the Chamber is transacted by a Managing Committee constituted in the manner provided in Article 27 of the Articles of Association. Under Article 10 of the Articles of Association, Annual General Meeting of the Chamber is required to be called within six months of the end of the official year of the Chamber. An electoral roll has got to be prepared by the Secretary of the Chamber for the election of the Managing Committee stating therein the names and addresses of all the patrons, Associate members, and ordinary members and to send to every member a copy thereof and four copies to every Associate Member, nearly a month prior to the holding of the Annual General meeting. The names of the members of the Managing Committee for the next year are announced in the Annual General Meeting. The names of the members of the Managing Committee for the next year are announced in the Annual General Meeting. Under Article 25 of the Articles of Association, the office bearers of the Chamber are elected from amongst the members of the Managing Committee as per procedure laid down in the Appendix attached to the Memorandum and Articles of Association. The grievance of the plaintiff Mr. V.N. Soral is that at the Annual General Meeting of the Chamber held on June 28, 1975, he raised several objections and put certain questions to the President and the Secretary of the Chamber but none of his questions or objections was answered. On the contrary he was asked by the President not to put any question. Para 13 of the plaint contains the details of the objections and questions raised by the plaintiff at the Annual General Meeting held on June 28, 1975. Para 13 reads like this:- "13. That several objections and queries were raised by the plaintiff in the Annual General Meeting with regard to the following matters:- (a) The plaintiff wanted to know the total number of new members enrolled under various categories and the amount of subscription received from them retrospectively. Further the plaintiff also enquired about the utilisation of funds set apart for the Rajasthan Economic Development Council Fund. The plaintiff also made a query regarding the total amount of subscription received by the defendant No. 1 on the basis of which the roll list circulated by the Secretary had been prepared. It was also enquired by the plaintiff if the Rajasthan Economic Development Council Fund could be spent on the routine activities of the Chamber such as the publication of the Chamber Bulletin. The defendant No. 2 who was presiding over the meeting gave no reply to any of the queries. On the contrary, he very rudely asked the plaintiff to resume his seat. (b) That it was also pointed out by the plaintiff in the Annual General Meeting that the list of the Associate Members circulated by the defendant No.1 only showed the names of 27 members, while the names of the Members announced by the President on the Executive Committee from the Associate Members Constituency were 43. The plaintiff raised a query to ascertain as to when the additional 16 Associate Members had been enrolled after the circulation of the roll list. The plaintiff raised a query to ascertain as to when the additional 16 Associate Members had been enrolled after the circulation of the roll list. the plaintiff wanted to know the date of the Executive Committee Meeting which had admitted such additional Members but no reply was given. The president (Defendant No.2) only shouted down the plaintiff telling him not to make any more queries. (c) That as soon as the names of all the members of the Managing Committee had been announced by the defendant No. 2, it struck to the plaintiff that there were no members from the Donor's Constituency on the newly announced Managing Committee. The plaintiff immediately pointed out that the representatives from among the Donor members had been completely omitted in the list announced. He wanted to know if there were any elections to elect representatives from among the Donors on the Managing Committee as provided under article 27 clause (g) of Articles of Association. The defendant No. 2 and 9 looked completely blank and made no reply to the query. Thereafter the defendant No. 2 started shouting whatever came to his head. The plaintiff while making the aforesaid query regarding the absence of the Donor Members on the Managing Committee also wanted to know if the clause (d) of Articles 9 had not been deliberately eliminated while reproducing the said Articles on the back of the prescribed printed application form for membership of the Chamber so that the Members could be kept in the dark regarding the representation of the Donor Members and their rights. (d) That the plaintiff having been associated with the activities of the Chamber from its very inception had full knowledge regarding the construction of various buildings of the Chamber & the use they were to be out to. As such he wanted to know as to why and how the East Wing of the Chamber Buildings constructed so far had been rented out to different parties when a solemn promise had been given to all the donors who had very generously donated to the Building Fund of the Chamber that the said Wing would never be let out. As in the case of other queries,the defendant No. 2 abruptly declared the proceedings of the Annual General Meeting closed under loud shouts of protests from the Members assembled there." 3. As in the case of other queries,the defendant No. 2 abruptly declared the proceedings of the Annual General Meeting closed under loud shouts of protests from the Members assembled there." 3. The plaintiff further alleges that the President of the Chamber announced the names of the members of the Managing Committee for the year 1975-76 at the Annual General Meeting held on June 28, 1975. According to the plaintiff some of the members of the Managing Committee constituted for the year 1975-76 were such who had neither been enrolled as members nor were they eligible for enrolment. In para 14 of the plaint, the plaintiff pointed out two names of Associate members namely M/s. R.K. Hotels (P) Ltd. and M/s. Sahu Minerals and Properties Ltd. which were never enrolled as such members and still they were taken on the Managing Committee for the year 1975-76. In para 17 of the plaint the plaintiff pointed out that Shri S.K. Patney, Shri K.D. Gupta, Shri J.C. Sharma, Shri M. Sayeed Khan and Shri Heerachand, M. Choudhary were taken on the Managing Committee for the year 1975-76 from amongst the ordinary members although they were not eligible to be enrolled as ordinary members as per clause (d) of Article 2 of the Articles of Association. In para 18 of the plaint the plaintiff pointed out the names of those Associate Members who wanted to change their nominees on the Managing Committee, for which intimation in writing with the consent of the nominees had been sent to the Chamber before the Annual General Meeting, but in spite of that the President did not announce the names of the new nominees of the Associated Members with the result that the new nominees were deprived of their right to contest election of the office bearers as well as to exercise their right to vote at the election office bearers. In para 19 of the plaint the plaintiff summarised the grounds on which he challenged the constitution of the Managing Committee for the year 1975-76. In para 19 of the plaint the plaintiff summarised the grounds on which he challenged the constitution of the Managing Committee for the year 1975-76. The relevant portion of para 19 reads as under:- "The constitution of the so called Managing Committee for the year 1975-76 is patently illegal and contrary to the provisions of the Articles and is void ab initio on the following grounds:- (a) That the constitution of the Managing Committee suffers from patent illegality and has also some inherent defects on account of inclusion of several persons on the Managing Committee for 1975-76 from the General Constituency and the specified constituencies representing Patrons and Ordinary Members when many of them could not be enrolled as members of the Chamber. As such the said Managing Committee cannot be said to be validly constituted Managing Committee. (b) That a circular No. RCC/1062/39 dated 16.5.1972 under the signature of defendant No. 9 was issued from the office of defendant No. 1 wherein the Associate Members were given an option to send the names of their nominees on the Managing Committee. Subsequently, another circular No. RCC/1124/42 dated May 28, 1975 was issued to all the Members informing them as under:- "Nominations from Divisional Chambers and Associate Members, as and when received in conformity with the Constitution of the Chamber, will be included in the list of the Executive Committee Members." 4. Thus in view of the above circular the Associate members could sent the names of their nominees on or before the date of the Annual General Meeting so as to enable the defendants No. 2 and 9 to announce their names in the Annual General Meeting as Members of the Managing Committee. (c) That a letter No. RCC/1063 dated June 17th,1975 was issued by the office of defendant No. 1 to four to its Associate Members the contents of which are reproduced here below for ready reference of the learned Court:- "According to clause 27 (b) of the Articles of the Chamber, every Associate Member automatically becomes a Member of the Executive Committee of the Chamber. Shri Harendra Mirdha represents your organisation on the Executive Members at present. In case you want any change you are requested to please send the name of your another representative along with his written consent so as to reach us latest by June 27, 1975. Shri Harendra Mirdha represents your organisation on the Executive Members at present. In case you want any change you are requested to please send the name of your another representative along with his written consent so as to reach us latest by June 27, 1975. If no communication is received from you by the above date it will be presumed by the office that your present representative will continue." From this letter it was evident that every Associate Member was fully within his rights to nominate his fresh representative on the Managing Committee for 1975-76 upto June 27, 1975. (d) That under clause 27 (b) of the Articles of the Association every person so nominated is to become member of the Managing Committee. As such, the defendant No. 1 and its office bearers were under a legal obligation to include the names of the nominees as soon as their names were intimated with their consent, in writing, to the Chamber on or before the date of the Annual General Meeting. (e) That Donar Members must be considered for election to the Managing Committee and/or as office bearers of the Managing Committee 8 Donor members out of the category of Donor members must be members of the Managing Committee. Election from amongst Donor Members must be held every year soon after the September 30th. In the present case, election from amongst Donor Members for the Managing Committee to be constituted for 1975-76 was not held, but the alleged election of the Managing Committee and its office bearers for the year 1975-76, was held without even notice to any of the Donor Members and in their absence and behind their back. Thus, the Managing Committee is not constituted of any member from amongst Donor Members in the alleged election for the year 1975-76 and for that reason the said alleged election of the Managing Committee and its office bearers is null and void. (f) That the defendants purposely and intentionally to serve their own ends, called a number of strangers who were neither members of the Chamber nor had any concern with its activities but who were called simply to obstruct the entry into the Committee room, of those members of the Managing Committee who were in opposition of the defendants. (f) That the defendants purposely and intentionally to serve their own ends, called a number of strangers who were neither members of the Chamber nor had any concern with its activities but who were called simply to obstruct the entry into the Committee room, of those members of the Managing Committee who were in opposition of the defendants. The result was that several Members of the Managing Committee who wanted to exercise their right of vote were not allowed to have their entry. Ina couple of minutes the result of the office bearers was announced. This came as a great shock to the members who had assembled there." 5. On the basis of the above grounds the plaintiff claimed that the election of the office bearers i.e. defendants 2 and 9 cannot be regarded as duly elected office bearers and as such they have no right to continue in office and to hold any meeting of the Managing Committee or to conduct any business of the Chamber. The plaintiff further claimed that the defendant No. 8 to 24 cannot legally act as members of the Managing Committee. The plaintiff therefore prayed for grant of the following reliefs in para 33 of the plaint which runs as under:- "(a) That the suit of the plaintiff be decreed against the defendants and it be declared that the continuation of the Managing Committee for 1975-76 as declared on June 28, 1975 at the Annual General Meeting is null and void on account of inclusion of defendants No. 8 to 24 on the Managing Committee and non conclusion of the nominees of several bonafide Associate Members and total absence from the Managing Committee of the representatives of the Donor Members. (b) It be further declared that the election of the office bearers by the said Managing Committee on June 28, 1975 is null and void and in operative. (c) That defendants No. 2 to 20 be restrained with immediate effect by an order of injunction from functioning as the office bearers of the defendant No. 1 and from transaction any business of the defendant No. 1. (d) That the defendants may further be restrained with immediate effect by an order of injunction from representing the Chamber or nominating appointing any representative of the Chamber on Government bodies, Committees formed by the Govt. (d) That the defendants may further be restrained with immediate effect by an order of injunction from representing the Chamber or nominating appointing any representative of the Chamber on Government bodies, Committees formed by the Govt. Semi Government Bodies, Corporation, Public Institutions, Local Authorities, Autonomous bodies, and any other bodies created by general public for social charitable, philanthropise, cultural or any other purposes.' (e) That the cost of the suit be awarded. (f) Any other relief to which the plaintiff may be deemed to be entitled be awarded. 6. Defendants 5, 8 and 12 filed their written statements. The remaining defendants did not file their written statements but they moved applications under section 34 of the Arbitration Act in each suit with the prayer that the proceedings in the suit be stayed. The defendants have admitted their application under section 34 that the Chamber is a company duly registered and incorporated under the Companies Act, 1956 and has got its own Memorandum & Articles of Association which regulate the relations not only between the Chamber & its members but also between the members inter & they are in the nature of an agreement between the members. The defendants further alleged that the real dispute raised in the suit relates to the constitution of the Managing Committee for the year 1975 : 76 as announced on June 28, 1975. The main plea raised by the defendant in their application under section 34 is that the suit filed by the plaintiff relates to the irregularities committed in the course of election and for that purpose clause 9 of the Appendix attached to the memorandum and Articles of Association provides that all the dispute concerning the election shall be decided by the scrutineers and they will be the final arbitrators in the matter Since the plaintiff is bound by clause 9 of the Appendix, the disputes raised by the plaintiff in the plaint should be referred to arbitration and the suit ought to be stayed under section 34 of the Arbitration Act. The defendants have further alleged that they have been and are still ready to refer the disputes if any for the decision of the arbitrators as envisaged in clause 9 of the Appendix. 7. The plaintiff Mr. The defendants have further alleged that they have been and are still ready to refer the disputes if any for the decision of the arbitrators as envisaged in clause 9 of the Appendix. 7. The plaintiff Mr. V.N. Soral in his reply opposed the application under section 24 of the Arbitration Act on the ground that the dispute in the suit relates to the constitution of the Managing Committee for 1975-76 & such dispute does not fall within the ambit of clause 9 of the Appendix. The plaintiff has further contended that the Managing Committee constituted for the year 1975-76 at the Annual General Meeting held on June 28, 1975 is illegal, firstly because it is against the provisions of Articles of Association & secondly because it included defendants 8 to 24 as members of the Managing Committee and thirdly because it did not include the nominees of several bonafide Associate Members and the representatives of the donor members. The plaintiff has further alleged that the election of the office bearers by the said illegally constituted Managing Committee is null and void. It is further alleged that the objections and grounds pleaded in the plaint do not merely relate to the irregularities in the course of election but also to 'malafide activities of the defendants in carrying out the affairs of the chamber and the unfair means adopted by them to manipulated the illegal constitution of the Managing Committee and thereafter to get themselves elected as office bearers in utter disregard and violation of the Articles of Association and the procedure laid down for constitution of the Managing Committee under Articles 27." The plaintiff further alleged that the scrutineers were appointed after manipulating the constitution of the Managing Committee for 1975-76 and they were appointed to look after the election of the bearers. According to the plaintiff, the said scrutineers had no authority or power to go beyond the irregularities committed during the course of election; they had no authority to probe into the malafide acts and manipulations of the Chamber in constituting the Managing Committee. The plaintiff then pleaded that clause 9 of the Appendix by no stretch of reasoning constitute an arbitration agreement within the meaning of section 2(a) of the Arbitration Act. 8. I have narrated the above facts in the suit instituted by Mr. V.N. Soral. The plaintiff then pleaded that clause 9 of the Appendix by no stretch of reasoning constitute an arbitration agreement within the meaning of section 2(a) of the Arbitration Act. 8. I have narrated the above facts in the suit instituted by Mr. V.N. Soral. It is not necessary to narrate the facts in other two suits instituted by M/s. Magan Behari Lal & Co. and M/s. Premier Paper and Board Mills as it is conceded that the facts of those two cases are exactly similar to the facts stated above. 9. Two important questions arise for consideration in these appeals. Firstly whether clause 9 of the Appendix attached to the Articles of Association of the Chamber tantamount to an arbitration agreement within the meaning of section 2(a) of the Arbitration Act and secondly if so whether the disputes arising in the three suits fall within the purview of this arbitration clause so as to bar the remedy by way of suit. 10. Before dealing with these questions, it will be desirable to read clause 9. It runs as under:- "9. If a member gives any objection in writing to the Secretary regarding any irregularity done in the course of election it shall be brought to the notice of scrutineers immediately and shall be dealt within the manner as prescribed by them. They shall be the sole judges for all the disputes concerning the elections and in the case of difference they will choose a referee who will be the final arbitrator in this matter." 11. To understand the above clause more clearly it is necessary to have a glance at other clauses of the Appendix. It may be mentioned at the outlet that the Appendix deals with the procedure for the election of Managing Committee and its office bearers. It consists of 11 clauses in all. Clause 1 speaks of preparation of electoral roll and sending it to every member by the Secretary nearly a month prior to the holding of the Annual General Meeting. This shows that the work of preparation of electoral roll is required to be completed by the Secretary at least one month prior to the date for holding of the Annual General Meeting. Clause 2 deals with the procedure for sending of voting papers, filing of nominations and their scrutiny by the Secretary and preparation of the list of the candidates seeking election. Clause 2 deals with the procedure for sending of voting papers, filing of nominations and their scrutiny by the Secretary and preparation of the list of the candidates seeking election. Clause 3 provides the procedure and time limit for withdrawal of candidatures. Clause 4 states that each member shall have one vote for each seat to be filled in the Committee. I now quote clause 6 which is an important clause. It reads as under:- "6. Prior to the holding of the Annual General Meeting the Managing Committee shall appoint two persons as scrutineers other than those directly interested in the election to scrutinise the voting papers. They can also be chosen from outside the membership of the committee. The scrutineers appointed shall reject such of the voting papers as are not valid and not properly filed and count the votes and shall draw the election results." 12. Clause 5 provides that election shall take place at the Annual General meeting by secret ballot. It further provides that the scrutineers will open the ballot box and after counting the votes they would submit the result to the Annual General Meeting. Clause 7 deals with declaration of election results. Clause 8 provides that the result of the election so held shall be declared at the Annual General Meeting's session. Clause 9 has already been quoted above in extenso. Clause 10 and 11 deals with the election of the co-opted members and office hearers namely, President, Vice Presidents and Honorary Secretary. 13. A reading of clause 6 would reveal that as per this clause it is the duty of the out going Managing Committee to appoint two persons to work as scrutineers for the purpose of scrutiny of voting papers, to reject such of them which are not valid and properly filled, to count the votes and to draw up the election results. The scrutineers thus come into the picture only just before the date of the Annual General meeting. The primary purpose of their appointment appears to be to scrutinise the voting papers, counting of votes and drawing up of election results. The work relating to preparation of electoral roll, distribution of voting papers and receiving of nominations vests with the Secretary of the Managing Committee. The primary purpose of their appointment appears to be to scrutinise the voting papers, counting of votes and drawing up of election results. The work relating to preparation of electoral roll, distribution of voting papers and receiving of nominations vests with the Secretary of the Managing Committee. Clause 9 authorises the scrutineers appointed under clause 6 to decide objections relating to irregularities committed during the course of election in the manner prescribed by them. The clause is silent as to the procedure which shall be followed by the scrutineers in deciding the objections. The clause further says that the objection petition if presented by a member about the irregularities committed in the course of the election shall be forwarded for decision to the scrutineers whose decision will be final and in case of difference of opinion they shall choose a referee who will be the final arbitrator in the matter. The procedure to be followed by the scrutineers in deciding the disputes referred to them has been left to their sweet will. There is also nothing to suggest that the decision given by the scrutineers shall amount to an award within the meaning of the Arbitration Act and the procedure for filing the award and to obtain a decree in accordance with the award will come into play. 14. Reading clause 9 in the above background, I am inclined to the view that clause 9 is not a clause constituting an arbitration agreement within the meaning of the Arbitration Act, 1940. It does not contemplate submission of dispute to arbitrator Clause (a) of section 2 of the Arbitration Act, 1940 defines "Arbitration Agreement" as under:- "2(a)"arbitration agreement" means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named there, in or not. 15. The essential conditions of an arbitration agreement are: 1. there should be an agreement, 2. the agreement must be in writing, 3. the agreement should be to submit either present or future differences to arbitration. 16. Thus one of the essential ingredients of the arbitration agreement is that the parties to the agreement must agree to submit their disputes present or future to arbitration i.e. there must be anumus arbitrandi. the agreement must be in writing, 3. the agreement should be to submit either present or future differences to arbitration. 16. Thus one of the essential ingredients of the arbitration agreement is that the parties to the agreement must agree to submit their disputes present or future to arbitration i.e. there must be anumus arbitrandi. In other words one of the essential ingredients of arbitration agreement is that the party should intend that the dispute intended to be submitted for arbitration should be determined in judicial or quasi judicial manner; See Halsbury's Laws of England, Fourth Edition,Volume 2 paras 501 and 502; the relevant portions of which runs as under:- "501. "An arbitration is the reference of a dispute or difference between not less than two parties for determination, after hearing both sides in a judicial manner, by a person or persons other than a court of competent jurisdiction." 502. "The term "arbitration" is issued in several senses. It may refer either to a judicial process or to a non-judicial process. A judicial process is concerned with the ascertainment, declaration and enforcement or rights and liabilities as they exist, in accordance with some recognised system of law. An industrial arbitration may well have for its function to ascertain and declare but not to enforce, what in the arbitrator's opinion ought to be the respective rights and liabilities of the parties, and such a function is non-judicial. Conciliation is a process of persuading parties to reach agreement, and is plainly not arbitration; nor is the Chairman of a Conciliation Board an arbitrator. Statutory arbitration take their character from the statutes providing for them. The bulk of this title is concerned with private arbitration under the Arbitration Act 1950. Such an arbitration is a reference of a dispute to a private tribunal for hearing in a judicial manner in accordance with a fixed recognisable system of law. Statutory arbitration take their character from the statutes providing for them. The bulk of this title is concerned with private arbitration under the Arbitration Act 1950. Such an arbitration is a reference of a dispute to a private tribunal for hearing in a judicial manner in accordance with a fixed recognisable system of law. Agreements to be bounded by counsel's opinion or by the result of a valuation or appraisement or in accordance with abstract justice, are not arbitration." In my opinion, the essence of arbitration agreement is that the arbitrator decides the case or dispute or difference either on the basis of his own knowledge or make inquiries and take evidence and then gives his award which is in the nature of a judgement and that judgement is later on incorporated into a decree of the court in accordance with the procedure laid down in the Arbitration Act, 1940. But where a person is appointed to settle disputes and there is nothing to suggest that he is required to give a judicial or a quasi-judicial decision in respect of disputes referred to him after hearing the evidence led by the parties, such an agreement cannot be treated as arbitration agreement merely because the parties agreed to abide by the opinion or decision of a third person. 17. A reading of clause 9 alone with other clauses leaves no doubt in my mind that it was never the intention of the parties that there should be a reference to arbitration under the Arbitration Act, 1940; their intention was that the scrutineers appointed under clause 6 should decide differences arising in the election of the Managing Committee or its office bearers and the parties will be bound by the decision of the scrutineers. There is nothing to suggest that the scrutineers were to decide the disputes referred to them in a judicial or even in a quasi judicial manner after making an inquiry. If this was not the intention, the agreement contained in clause 9 does not amount to a submission to arbitration on the scrutineers cannot be regarded is arbitrators. Having given the matter my full consideration, I have no hesitation to say that clause 9 of the appendix is not an arbitration clause amounting an an arbitration agreement within the meaning of the Arbitration Act, 1940. Having given the matter my full consideration, I have no hesitation to say that clause 9 of the appendix is not an arbitration clause amounting an an arbitration agreement within the meaning of the Arbitration Act, 1940. This clause appears to have been enacted to obtain speedy remedy of the disputes arising in respect of election of the Managing Committee and its office bearers, without following the procedure as provided under the Arbitration Act. 18. Before parting with this question, I may make it clear that if it appears from the terms of the agreement that the intention of the parties was that any third person should hold an enquiry in the nature of a judicial inquiry and hear the respective cases of the parties and decide upon evidence laid before him, then the case is one of arbitration within the meaning of the arbitration Act, 1940. But there may be cases where though a person is appointed to settle dispute; still it is not intended that he shall be bound to hear the evidence and arguments and in such a case it may sometimes be difficult to say whether he is intended to be an arbitrator or to exercise some function other than that of an arbitrator. Such type of cases must be determined each according to its particular circumstances of the case. However, as already pointed out above, having regard to the circumstances of the case in hand, I am inclined to told that clause 9 is not an arbitration clause constituting an arbitration agreement within the meaning of the Arbitration Act, 1940. 19. This brings me to the next question whether the disputes arising in the present case fall within the ambit of clause 9? A bare reading of this clause would reveal that it consists of two parts.First part states that if a member gives any objection in writing to the Secretary regarding any irregularity done in the course of election, it shall be brought to the notice of scrutineers immediately. The second part of the clause states that the scrutineers shall be the sole judges for all the disputes concerning the elections and in case of difference they shall choose a referee who will be the final arbitrator in the matter. It is argued by Mr. The second part of the clause states that the scrutineers shall be the sole judges for all the disputes concerning the elections and in case of difference they shall choose a referee who will be the final arbitrator in the matter. It is argued by Mr. Bhargava on behalf of the appellants that the words "for all the disputes concerning the elections" are very comprehensive and these words include not only the disputes or differences arising during the course of election but also each and every dispute concerning the election. Mr. Bhargava's contention is that the scrutineers were empowered by this clause to decide all the disputes relating to elections of the Managing Committee and its office bearers. On the other hand according to the learned counsel for the respondent this clause empowers the scrutineers to decide only the objection regarding the irregularities committed during the course of election i.e. beginning with inviting of the nominations and ending with the declaration of the result. According to the respondents, the scrutineers had no power to decide the dispute regarding the preparation of the electoral roll which is required to be completed by the Secretary long before the nominations are invited. In my opinion, there is not much difference between the expression "during the course of election" and the expression "all the disputes concerning the elections". The real question that arises for determination is what is meant by the term "election" as used in clause 9. In its ordinary or etymological meaning the term means some act of choosing specially by vote. it is stated in Halsbury's Laws of England' Vol. 12 at pages 232, 237 and 238:- "The first step towards an election of a member of the Parliament is the issue of a writ out of the Crown Office in Chancery.....it is a question of fact in each case when an election beings in such a way as to make a party concerned responsible for breathes of the election law, the test being whether the contest is "reasonably imminent". Neither the issue of a writ nor the publication of the Notice of election can be looked to as fixing a date when an election begins from this point of view." 20. Neither the issue of a writ nor the publication of the Notice of election can be looked to as fixing a date when an election begins from this point of view." 20. A close examination of the various clauses of the Appendix from the point of view of the question before us, leads me to the conclusion that the election commences when a nomination paper of the person seeking election is presented to the Returning Officer and ends when at the Annual General Meeting the results of the election are declared. As pointed out above, the act of the Secretary to prepare electoral roll has to be completed by him at least one month prior to the date of the Annual General Meeting i.e. long before the presentation of the nomination paper. 21. Mr. M.B.L. Bhargava, the learned counsel for the appellants has placed reliance on N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency, AIR 1952 SC 64 which is a leading case on the point exclaiming the scope of Article 329 of the Constitution of India. It was laid down in that case by their Lordships of the Supreme Court: (1) that part XV of the Constitution is a code by itself regarding the election law relating to the election to the Parliament and the State Legislatures, (2) that it creates rights and provides for their enforcement by a special tribunal to the exclusion of all the courts, (3) that only one remedy is provided, that remedy being by an election petition and, (4) that where a right or liability is created by a statute which gives special remedy for enforcing it, the remedy provided by that statute only must be availed of. It was also laid down there in that the word "election" in Part XV of the Constitution has been used in a very wide sense, that is to say, that it connotes the entire procedure to be gone through to return a candidate to the Legislature and therefore election within the meaning of Part XV of the Constitution of India commences as soon as the notification is issued that polls would hold Undoubtedly the electoral roll is prepared after such a notification is issued. 22. 22. In my opinion, the meaning given to the term "election" by their Lordships of the Supreme Court in the above case is not helpful in the present case, for there is no provision either in the Memorandum of Association or Articles of Association or in the Appendix which provides for issue of notification that polls for election of the members of the Managing Committee and its office bearers would be held. 23. Articles 10 (a) of the Articles of Association provides that there shall be held a General Meeting of the members which shall be called the Annual General Meeting within six months of the end of the official year of the Chamber. Article 13 states that except where specifically provided by the law in force, a clear notice of at least 14 days will be considered sufficient for the purpose of calling any General Meeting provided nevertheless if a special resolution is to be passed 21 clear days notice instated of 14 days shall be required to be issued under Articles 13. 24. In view of the above provisions, it is difficult to hold that the word 'election' in clause 9 has been used in a very wide sense including the preparation of the electoral roll. 25. In the present case some of the allegations made it the plaint relate to the defective preparation of the electoral roll such as : (1) inclusion of the ordinary members who were not eligible to be enrolled as ordinary members and (2) omission to announce at the Annual General Meeting the new names of the nominees of the Association Members. The dispute relating to defective preparation of electoral roll, in my opinion, can in no case fall within the ambit of clause 9. Apart from that the plaintiffs have also challenged the validity of the constitution of the Managing Committee for the year 1975-76 in para 19 of the plaint. Some of the illegalities mentioned in that para such as non inclusion of some of the nominees of the Association Members who automatically become the members of the Managing Committee under clause 27 (b) of the Articles of Association and omission to hold election from amongst Donor Members also do not fall within the purview of clause 9. Some of the illegalities mentioned in that para such as non inclusion of some of the nominees of the Association Members who automatically become the members of the Managing Committee under clause 27 (b) of the Articles of Association and omission to hold election from amongst Donor Members also do not fall within the purview of clause 9. Even it some of the disputes raised in the suit fall within the scope of clause 9 but not all the disputes, in such a case, the case must be decided by a court of law. It would be extremely inconvenient if in the same suit some of the disputes were allowed to be litigated in the court and the others were allowed to be decided by an arbitrator. 26. I now turn to the findings arrived by the learned Additional District Judge on this question. The learned Additional District Judge has observed:- ".....I am of the opinion that the clause 9 is an arbitration clause only for the purposes of the disputes arising during the course of election which concern the examination of the votes which have been polled by the different members at the election and the clause 9, therefore, cannot be extended any further and cannot cover the disputes which may be said to have arisen on account of interpretation of Memorandum and Articles of Association. As a corollary of any finding on the first point discussed hereinbefore, I am of the opinion that the arbitration clause as contained in clause 9 of the Appendix, would not be applicable to the matters raised in the plaintiff suit. The plaintiff has challenged the constitution of the Managing Committee on account of the inclusion of defendant Nos. 8 to 24 on the Managing Committee as some of them cannot become the ordinary members of the Chamber as they were not the members of the Divisional Chambers of Commerce & Industry at Jaipur, in accordance with Articles 2(d), non inclusion of the nominees of several bonafide associate members as shown in Annexure 2 of the plaint and the total absence of the donor members on the Committee." 27. The learned Additional District Judge has further observed:- "The plaintiff has also challenged the election of the office bearers of the Chamber by the Managing Committee. The learned Additional District Judge has further observed:- "The plaintiff has also challenged the election of the office bearers of the Chamber by the Managing Committee. This election is held under Article 25 of the Articles of Association and for the reasons stated above this matter will also be beyond the purview of the Scrutineers as mentioned in clause 9 of the Appendix." 28. In my opinion the above conclusion arrived at by the learned Additional District Judge are based on sound reasons and deserve to be affirmed. 29. The whole scope of Section 34, Arbitration Act is an enquiry as to whether the suit will be stayed and the moment the court comes to the conclusion that the suit cannot be stayed because the dispute, raised in the suit is not the dispute agreed to be referred, the section exhausts itself and there is no warrant in section 34 for proceedings further to decide any other question. It has further to be remembered that the provisions contained in section 34 undoubtedly confer a discretion on the court though the point of time and the manner in which such discretion can be exercised is regulated by the provisions contained in that section, and on principles of decided cases. Their Lordships of the Supreme Court in Printers (Mys.) Private Ltd. v. P.Joseph, AIR 1960 SC 1156 laid down:- "Whether the discretion vested in the court under section 34 has been exercised by the trial court the appellate court should be slow to interfere with the exercise of the said discretion. In dealing with the matter raised before it at the appellate stage the appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court would have taken a different view may not justify interference with the trial court's exercise of discretion. If the discretion has been exercised by the trial court would have taken a different view may not justify interference with the trial court's exercise of discretion. As is often said, it is ordinarily not open to the appellate court to substitute its own exercise of discretion for that of the trial judge; but if it appears to the appellate court that in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts and has adopted an un-judicial approach then it would certainly be open to the appellate court and in many cases it may be its duty to interfere with the trial court's exercise of discretion." 30. In the present case, I do not find that the exercise of discretion by the lower court is patently or manifestly unreasonable, capricious or perverse and that it may defeat the ends of justice. Having regard to all the facts, I am not inclined to hold that a case for interference in the exercise of discretion by the lower court has been made out by the appellants. 31. I, therefore, dismiss all the three appeals with costs. *******