Judgment S.K.CHOUDHURI, J. 1. This miscellaneous appeal by the defendants under S.39(1)(v) Arbitration Act, 1940 (hereinafter called the Act) is directed against the judgment and order dated 16th November, 1979 passed in Money Suit No. 226 of 1976 rejecting an application filed under S.34 of the Act. 2. The application under S.34 of the Act was filed by the defendants under the following circumstances :- A money suit has been filed by the Bihar State Electricity Board in the Court of the Subordinate Judge I, Patna with a prayer to decree the suit for a sum of Rs. 65,49,535.42 paise, as per details given in the plaint. After service of notice of the suit the defendants appeared and filed an application under S.34 of the Act to refer the suit to arbitration and to stay the proceedings of the suit. The suit was filed by the plaintiff on 22-7-1976. The defendants appeared on 25-9-1978 and filed the present application under S.34 of the Act. It is not disputed that before any step was taken in the suit, the defendants at the first opportunity filed the said application. 3 In the application under S.34 of the Act it is stated that the subject matter of the suit arises out of two purchase orders; one bearing No. 10 dated 30-6-1973 and another bearing No. 16 dated 12-7-1973. The terms and conditions incorporated in the said orders contained similar arbitration clause, namely, Cl.21 which reads as follows :- "21.1. In the event of any question of dispute arising under these conditions or any special conditions of contract or in connection with this contract (except as to any materials the decision of which is specially provided for by these or the special conditions) the same shall be referred to two Arbitrators, one to be nominated by the purchaser and other to be nominated by the supplier, and in the case of the said Arbitrators not agreeing, then to an Umpire to be appointed by the said arbitrators, and the decision of the Arbitrators or in the event of their not agreeing, of the Umpire appointed by them, shall be final and conclusive and the provision of the Arbitration Act, 1940 and the Rules thereunder and any statutory modification thereof shall be deemed to apply to and incorporated in the contract. 21.2. 21.2. Work under the contract shall if reasonably possible continue during the arbitration proceeding and dues if any payable by the purchaser to the contract with respect to the work not in dispute shall not ordinarily be withheld on account of such proceedings unless it becomes necessary to withhold the same." It has further been submitted in the application that the subject matter of the suit under which damages have been claimed by the plaintiff on the alleged breach of contract by the first defendant is fully covered by the arbitration clause and so the plaintiff was bound to refer the said dispute to arbitration instead of filing the suit. According to the defendants, as stated in that application, the plaintiff has filed the aforesaid suit for breach of the arbitration agreement and, therefore, the defendants are entitled to pray for stay of the said suit under the provisions of S.34 of the Act. The further averment was that the defendants have not filed any written statement nor they have taken any step in the proceeding and they were always ready and willing to do all things necessary for proper conduct of the arbitration and there is no sufficient reason why the matter should not be referred to arbitration in accordance with the arbitration agreement, which was valid in law. This application under S.34 of the Act was supported by affidavit sworn by Dr. N. D. Desai, Managing Director of the Company-first defendant (defendant 4). Defendant 2 the Chairman of the Company, re-sworn the contents of the application filed under S.34 of the Act by way of abundant caution as an objection was raised in the rejoinder petition filed by the plaintiff that the affidavit was not proper. 4. A rejoinder was filed by the plaintiff to the said application. In that rejoinder it has been denied that the arbitration clause as contained in the arbitration agreement was attracted as the dispute raised in the suit, according to the plaintiff, was not covered by the said arbitration clause. As the defendants did not express their willingness and readiness to go to arbitration in reply to the plaintiffs notice it would amount to waiver on the part of the defendants by their conduct to get the matter referred to arbitration. As the defendants did not express their willingness and readiness to go to arbitration in reply to the plaintiffs notice it would amount to waiver on the part of the defendants by their conduct to get the matter referred to arbitration. A further averment was made that the points involved in the suit are very complicated and fit to be decided by competent Court of law. The object of the defendants in filing the petition under S.34 of the Act was to delay the hearing of the suit. The affidavit affixed to the application under S.34 of the Act was not proper. 5. The defendants filed a reply to the said rejoinder reiterating the stand taken in the application under S.34 of the Act. It has also been alleged therein that the defendants were not legally bound to express their willingness and readiness in their reply to the plaintiffs notice. Allegation of waiver on the part of the defendants has also been denied. It further alleged that the points involved in the suit were not complicated. 6. The Court below after hearing the parties passed the impugned order. It found (1) that the dispute in the suit is connected with the agreement and the unilateral cancellation of the delivery of the items of goods may amount to putting an end to the contract, but the arbitration clause cannot be held to have been repudiated; (2) the breach of contract is hinged upon the cunning conduct of the defendants which cannot be left to be decided by the arbitrators, which fact is also evident from the filing of piecemeal affidavits although technically there may not be much against such affidavits; and (3) it appears that shrewdly visualising imminent price rise in immediate future, the defendants tactfully delayed the delivery of the goods and thereafter cancelled the contract. After recording the aforesaid conclusions, the trial Court rejected the application under S.34 of the Act. 7. We were taken by learned Counsel for the parties through the impugned order carefully. Learned Counsel for the appellants pointed out that the real discussion by the learned Subordinate Judge has been made in para 10 and he has arrived at the conclusion in paras 12, 13 and 14 of the judgment. 7. We were taken by learned Counsel for the parties through the impugned order carefully. Learned Counsel for the appellants pointed out that the real discussion by the learned Subordinate Judge has been made in para 10 and he has arrived at the conclusion in paras 12, 13 and 14 of the judgment. Before para 10, have been given the contents of the application under S.34 of the Act, the rejoinder and the reply thereto and some portions of the plaint including the claim made in the suit. 8. Para 10 of the judgment refers to the various decisions of different High Courts and after discussion, the learned Subordinate Judge has recorded that the dispute in the suit was connected with the agreement. The grievance of learned Counsel for the appellants regarding the conclusions recorded in paras 11 and 12 and the final conclusion in para 14, is that they are not supported by materials on record and, therefore, they stand vitiated in law. Learned Counsel, therefore, challenges the aforesaid findings (2) and (3) already noted by me above. It will be apposite here to mention about the discussions made in para 9 of the impugned judgment in pursuance of which the aforesaid findings (2) and (3) have been recorded. Para 9 mentions about Annexures A to E of the plaint and states that they are correspondences in the forms of cables and letters written by the plaintiff to the defendants. The Court below has noticed the filing of the stay application on 25-9-1978 and several affidavits. The rejoinder by the plaintiff was filed on 20-12-1978 and thereafter defendants 2 and 3 filed power on 2-11-1979, on objection being raised by the plaintiff on 26-9-1979 that those defendants had not filed any power. The Court below therefore noticed that taking advantage of the adjournment of the arguments, defendants 2 and 3 filed power and thus filled up the lacuna. After referring to several decisions in para 10 of the judgment, which neither party has challenged, the Court below recorded in para 12 that the conduct of the defendants was cunning, and, therefore, it was worthwhile to scrutinise the facts and law by a competent Court of law. After referring to several decisions in para 10 of the judgment, which neither party has challenged, the Court below recorded in para 12 that the conduct of the defendants was cunning, and, therefore, it was worthwhile to scrutinise the facts and law by a competent Court of law. It further noticed that the amount claimed in the suit is heavy and should not be left to arbitrators for decision as they were not fully competent to look into the conduct of the defendants with sufficient forensic scrutiny. After referring to a decision of the Supreme Court in the Printers (Mysore) Private Ltd. V/s. Pothan Joseph, AIR 1960 SC 1156 , the Court below was further of the view that it was discretionary upon the Court to stay or not to stay the suit, though that discretion is to be exercised judicially, such as in cases of fraud, dishonesty, judicial vindication of character, complex law, etc. It, therefore, refused to stay the suit. 9. It will be apposite to point out that the conclusion of the trial Court is that the dispute raised in the suit would be considered to attract the phrase in connection with this contract as used in Clause 21.1 of the agreement. I will, therefore, cursorily refer to the claim made in the suit. The relevant paras of the plaint are paras 28 and 32 to 38. In para 28, the averment is that the defendant all of a sudden by its letter dated 6th February 1974 cancelled the contract without any rhyme or reason and consent of the plaintiff. Para 32 states that the defendants agreed to supply the required materials of control cables to the plaintiff at a total cost of Rs. 45,32,582.00.00 but they failed to honour the contract and, therefore, liable to compensate to the plaintiff for the loss it has suffered in procuring the similar quantity and quality of the control cables from their suppliers after going through the formalities of re-advertising acceptance of the tender etc., at a cost of Rs. 88,95,071.85p. Thus on account of non-supply of the control cables by the defendants, the plaintiff has suffered a loss of Rs. 43, 62, 489.85 paise, besides damages of Rs. 5,000,00/-. In para 33 of the plaint the plaintiff has claimed a loss of Rs. 14,87,045.57p, on account of non-supply of L. T. power cables, besides damages of rupees two lakhs. 88,95,071.85p. Thus on account of non-supply of the control cables by the defendants, the plaintiff has suffered a loss of Rs. 43, 62, 489.85 paise, besides damages of Rs. 5,000,00/-. In para 33 of the plaint the plaintiff has claimed a loss of Rs. 14,87,045.57p, on account of non-supply of L. T. power cables, besides damages of rupees two lakhs. Thus the total claim made in the suit is Rs. 65,49,535.42 paise. As it is recorded by the Court below that the dispute in the suit is covered by the arbitration clause, it is not necessary to go into that controversy. 10. Mr. Binod Kumar Kantha, learned Counsel for the appellants contended that the Court below has not exercised the discretion judicially in disposing of the application under S.34 of the Act, and on surmises and conjectures has come to the conclusion that the defendants by their cunning conduct, visualising immediate rise in prices in near future delayed the delivery of the goods and thereafter cancelled the contract. According to the learned Counsel, there is no material for coming to such a conclusion and, therefore, the Court below has acted illegally and with material irregularity in rejecting the application under S.34 of the Act. According to learned Counsel, it is a fit case where the dispute being covered by the arbitration clause should have been referred to arbitrators and the suit should have been stayed because the defendants have fulfilled all the requirements of law as were necessary for making an application under S.34 of the Act for stay of the suit. Mr. Brajeshwar Mallik, learned Counsel for the plaintiff-respondent, on the other hand, supported the impugned order and contended that the discretion exercised by the Court below in the facts and circumstances of the case was proper and when once such a discretion has been exercised against the defendants and in favour of the plaintiff-respondent, refusing to stay the suit, no interference is possible by this Court, in view of the principles laid down in the case of Union of India V/s. Birla Cotton Spinning and Weaving Mills Ltd., AIR 1967 SC 688 . 11. 11. It has not been disputed at the Bar that for stay of a suit under S.34 of the Act following conditions are necessary to be fulfilled :- "(1) The proceeding must have been commenced by a party to arbitration agreement against any other party to the agreement; (2) the legal proceedings which is sought to be stayed must be in respect of a matter agreed to be referred; (3) the applicant for stay must be a party to the legal proceedings and he must have taken no steps in the proceedings after appearance; (4) it is also necessary that he should satisfy the Court that he was also at the commencement of the proceedings ready and willing to do everything necessary for the proper conduct of the arbitration; and (5) the Court must be satisfied that there is no sufficient reason why the matter should not be referred to arbitration in accordance with the arbitration agreement." (See Anderson Wright Ltd. Moran and Co. AIR 1955 SC 53 ). The only question canvassed by learned Counsel for the respondent was that condition (4) has not been fulfilled, inasmuch as the defendants were not ready and willing to do everything necessary for the proper conduct of the arbitration, as the said desire was not expressed by the defendants in the reply to the plaintiffs notice before the filing of the suit. 12. Learned Counsel for the appellants met this argument by citing a decision of the Supreme Court in State of Punjab V/s. Geeta Iron and Brass Works Ltd., AIR 1978 SC 1608 . In that case it has been stated that mere silence on the part of the defendant after receipt of a notice under S.80 Civil P.C. did not disentitle the defendant to apply for stay of the suit under S.34 of the Act. Learned Counsel, therefore, was right in his contention that the readiness and willingness to refer the dispute to arbitration and to do everything necessary for proper conduct of the arbitration would arise only after the filing of the suit. If, however, it can be shown that after the suit the defendant did not fulfil condition (4), then it would operate as a bar on the part of the defendant to pray for stay of the suit. If, however, it can be shown that after the suit the defendant did not fulfil condition (4), then it would operate as a bar on the part of the defendant to pray for stay of the suit. It is, therefore, now necessary to see as to whether condition 4 aforesaid has been fulfilled by the appellants or not. It has already been stated that the appellants have shown in their-application filed under S.34 of the Act that the defendants were willing and ready to do all things necessary for the proper conduct of the arbitration. This pleading was in consonance with the language of S.34 of the Act. Nothing has been shown by the plaintiff which may be said to adversely affect the conduct of the defendants showing their unwillingness to assist and help in the conduct of the arbitration proceedings. This condition 4 in absence of such material, which the plaintiff failed to show from the records of the case, stands fulfilled. 13. Now coming to condition 5, it has been argued that there is no material on the record to show that the defendants were cunning in their conduct in terminating the contract and that they did so after visualising that there will be immediate rise in the prices. It has been pointed out by learned Counsel for the defendants-appellants that one of the purchase orders was handed over to the defendants on 30-6-1973 and the other one on 12th July 1973 and in pursuance of those purchase orders, the defendants did supply on 12-12-1973, 8132 K.M. of L. T. power cables worth Rs. 1,21,642.04P. After receipt of the aforesaid two purchase orders, according to the plaint itself, as recited in the impugned order, the defendants wrote a letter to the plaintiffs on 28-7-1973 signifying their acceptance after suggesting certain amendments regarding the delivery time and price etc., and the defendants also demanded that the plaintiff should reimburse the defendants for the increase in the price of the copper since 7th March, 1973 based upon London Metal Exchange and Minerals and Metal Trading Corporation. The defendants further stated that they would consent to supply with whatever stock of copper they held. The plaintiff, however, it appears, did not acquiesce to the suggestion of the defendants regarding increase in the price and the delivery time etc. The defendants also prayed for extension of the delivery time. The defendants further stated that they would consent to supply with whatever stock of copper they held. The plaintiff, however, it appears, did not acquiesce to the suggestion of the defendants regarding increase in the price and the delivery time etc. The defendants also prayed for extension of the delivery time. The plaintiffs in its reply asserted that the issue of the purchase orders was delayed because there was delay in finalising the terms and conditions and details on the part of the defendants and that the time limit for supply of materials was to be completed by the end of February, 1974. The plaintiff did not also agree to any reimbursement on account of rise in the price of copper. It has been pleaded in para 21 of the plaint that the defendants through their letter dated 10th September, 1973 intimated the plaintiff to complete the delivery of the control cables by 10th June, 1974 instead of 28th April, 1974, and requested for confirmation of the said offer. The further pleading was that the allegation of delay in sending the Bank guarantee pro forma by the plaintiff was not correct, as the defendants asked for it only on 16th August, 1973. The plaintiff stated that in case the defendants did not take requisite steps for the supply, the Board may adopt alternative measures for procurement of the cables and the defendants would be liable to reimbursement to the plaintiff the extra cost that may be incurred. It appears from the plaint that thereafter the defendants sent several telegrams informing the plaintiff to assist the defendants in obtaining the copper so that the schedule of the delivery time may be confirmed. According to the plaintiff, it took steps to provide assistance to the defendants to get the permit for copper and wrote letters to the department concerned at New Delhi and Calcutta. It is further pleaded that the defendants only partly complied with the supply of the goods as per the purchase orders and thereafter they did not continue to supply and suddenly cancelled the contract. These are in substance the averments made in the plaint, and it is on these allegations that the present suit has been filed for recovery of the amount mentioned in the plaint, as according to the plaintiff, it has got the work done through another agency. 14. These are in substance the averments made in the plaint, and it is on these allegations that the present suit has been filed for recovery of the amount mentioned in the plaint, as according to the plaintiff, it has got the work done through another agency. 14. I have already indicated above, that all the four ingredients have been satisfied by the defendants for obtaining the stay order. 15. In my view the trial Court was now correct in stating that the conduct of the defendants was cunning. There is no material to prove the same. In other words, though tenders were floated on 27th December, 1971 and acceptance of the tender filed by the defendants was made on 21st March, 1978 the two purchase orders, under which the defendants were to make supply, were given by the plaintiff on two dates viz., one on 30th June, 1973 and the other on 12th July, 1973. The original tender notice under which the goods as per the purchase orders were to be made, was February, 1974, as stated in para 7 of the impugned order. It appears that the defendants intended to complete the delivery of the control cables by 10th June, 1976 instead of 28th April, 1974, and requested confirmation of this offer by 30th September, 1973 (see para 21 of the plaint).The copper, which was required for manufacture of the materials as per purchase orders was a control commodity, and could be obtained only under permit. It is not the case of the plaintiff that the defendants with the assistance of the plaintiff could obtain permit of the copper and still did not comply with the purchase orders; rather it is the admitted position that with whatever copper the defendants held, the first installment of supply was made with the help of the said copper on 12-12-1973. Therefore, in the circumstances of the case, it cannot be said that the defendants were cunning in their conduct and such an inference by the trial Court was based purely on surmises and conjectures. Thus in my view, the defendants fulfilled all the conditions that were necessary for praying for stay of the suit under S.34 of the Act. 16. Therefore, in the circumstances of the case, it cannot be said that the defendants were cunning in their conduct and such an inference by the trial Court was based purely on surmises and conjectures. Thus in my view, the defendants fulfilled all the conditions that were necessary for praying for stay of the suit under S.34 of the Act. 16. It has been rightly contended by learned Counsel for the appellants that the dispute in the suit does not involve any complicated point of law, and the trial Court was not correct in stating otherwise. In the decision relied upon by learned Counsel for the respondent in the case of the Printers (Mysore) Private Ltd. V/s. Pothan Joseph, AIR 1960 SC 1156 , it has been stated in para 8 :- "..........It may not always be reasonable or proper to refuse to stay legal proceedings merely because some questions of law would arise in resolving the dispute between the parties....." In the present appeal as the pleadings stand, it cannot be said, as stated by the trial Court that "sufficient forensic scrutiny is necessary to find out the conduct of the defendants". In my view this conclusion is based on no material and, therefore, the Court below was not justified on that ground to reject the application under S.34 of the Act. 17. I may refer to the two decisions relied upon by learned Counsel for the appellants and one decision relied upon by learned Counsel for the respondent. The first case relied upon is the case of Heyman V/s. Darwin Ltd., 1942 AC 356. The dictum laid down in this case, in my view, fully supports the arguments of learned Counsel for the appellants. I may briefly refer that case here. That was a case where an American firm was appointed selling agent by an English firm, which was a manufacturer of steel in Sheffield. A dispute arose between the parties and the American firm filed an action claiming a declaration that the English firm had repudiated the agreement and for damages on various counts. That was a case where an American firm was appointed selling agent by an English firm, which was a manufacturer of steel in Sheffield. A dispute arose between the parties and the American firm filed an action claiming a declaration that the English firm had repudiated the agreement and for damages on various counts. There was an arbitration clause in the agreement in the following language :- "If any dispute shall arise between the parties hereto in respect of this agreement or any of the provisions therein contained or anything arising hereout the same shall be referred to arbitration." The English firm filed an application for stay of the action and for reference of the matter in dispute to the arbitrator. The contention of the American firm was that the English firm had repudiated the contract as a whole and the same being accepted by the American firm, the contract ceased to exist for all purposes and the arbitration clause shall be of no effect. This contention was not accepted. It was held in that case that the dispute between the parties in the action was within the arbitration clause, and the suit was, therefore, stayed. It laid down that where there is total breach of contract by one party so as to release the other of its obligation under it, the arbitration clause for its wide terms still remains effective. This is so even where the aggrieved party has accepted the repudiation and in such case either party may rely on the arbitration clause. It further held that the determination of repudiation or validity of a contract for the purpose of measuring claim arising out of breach is necessary to grant stay. Lord Porter in this case (at page 393) has pointed out as follows:- ".......this does not mean that in every instance in which it is claimed that the arbitrator has no jurisdiction the Court will refuse to stay an action. If this were the case such a claim would always defeat an agreement to submit disputes to arbitration, at any rate until the question of jurisdiction had been decided. The Court to which an application for stay is made is put in possession of the facts and arguments and must in such a case make up its mind whether the arbitrator has jurisdiction or not as best it can on the evidence before it. The Court to which an application for stay is made is put in possession of the facts and arguments and must in such a case make up its mind whether the arbitrator has jurisdiction or not as best it can on the evidence before it. Indeed, the application for stay gives an opportunity for putting these and other considerations before the Court that it may determine whether the action shall be stayed or not." Viscount Simon L. C. (at page 366) observed in that case as follows :- "An arbitration clause is a written submission agreed to by the parties to the contract, and, like other written submissions to arbitration, must be construed according to its language and in the light of the circumstances in which it is made. If the dispute is whether the contract which contains the clause has ever been entered into at all, that issue cannot go to arbitration under the clause, for the party who denies that he has ever entered into the contract is thereby denying that he has ever joined in the submission. Similarly, if one party to the alleged contract is contending that it is void ab initio (because, for example, the making of such a contract is illegal), the arbitration clause cannot operate, for on this view the clause itself also is void. But, in a situation where the parties are at one in asserting that they entered into a binding contract, but a difference has arisen between them whether there has been a breach by one side or the other, or whether circumstances have arisen which have discharged one or both parties from further performance, such differences should be regarded as differences which have arisen "in respect of" or "with regard to", or "under the contract", and arbitration clause which uses these or similar expressions should be construed accordingly." This English decision has been followed and noticed in several decisions of the Supreme Court. By way of instance I may refer to one of them, namely the case of Union of India V/s. Birla Cotton Spinning and Weaving Mills Ltd. AIR 1967 SC 688 . Therefore, this case fully supports the contention of learned Counsel for the appellants. The other case relied upon is Naihati Jute Mills Ltd. V/s. Khyaliram Jagannath, AIR 1968 SC 522 . Therefore, this case fully supports the contention of learned Counsel for the appellants. The other case relied upon is Naihati Jute Mills Ltd. V/s. Khyaliram Jagannath, AIR 1968 SC 522 . Only para 12 was referred to in which it has been stated that "even in cases of frustration it is the performance of the contract which comes to an end, but the contract will still be in existence for the purposes, such as resolution of disputes arising under or in connection with the contract." 18. I may now refer to the decision strongly relied upon by Mr. Brajeshwar Mallik learned Counsel appearing for the respondent. He contended that the case of the Printers (Mysore) Private Ltd. V/s. Pothan Joseph, AIR 1960 SC 1156 fully supports him, wherein it has been said that the power of stay of legal proceedings under S.34 of the Act is discretionary and the party cannot claim such stay as of right. This proposition has not been disputed by learned Counsel for the appellants. He, however, contended that this decision instead of going to support the contention of the respondent, supports the appellants. He relied upon portions from paras 8 and 9 of the judgment. He pointed out that in para 8 some guiding principles for grant or refusing stay has been stated. Therein it has been stated inter alia, as under :- ".......It may not always be reasonable or proper to refuse to stay legal proceedings merely because some question of law would arise in resolving the dispute between the parties. On the other hand, if fraud or dishonesty is alleged against a party it may be open to the party whose character is impeached to claim that it should be given an opportunity to vindicate its character in an open trial before the Court rather than before the domestic tribunal, and in a proper case the Court may consider that fact as relevant for deciding whether stay should be granted or not. If there has been a long delay in making an application for stay and the said delay may reasonably be attributed to the fact that the parties may have abandoned the arbitration agreement the Court may consider the delay as a relevant fact for deciding whether stay should be granted or not. If there has been a long delay in making an application for stay and the said delay may reasonably be attributed to the fact that the parties may have abandoned the arbitration agreement the Court may consider the delay as a relevant fact for deciding whether stay should be granted or not. Similarly, if complicated questions of law or constitutional issues arise in the decision of the dispute and the Court is satisfied that it would be expedient to leave the decision of such complex issues to the arbitrator, it may, in a proper case, refuse to grant stay on that ground; indeed, in such cases the arbitrator can and may state a special case for the opinion of the Court under S.13(b) of the Act." In para 9 it has been inter alia stated as under:- ".......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 unjustified approach then it would certainly be open to the appellate Court to interfere with the trial Courts exercise of discretion. In cases falling under this class the exercise of discretion by the trial Court is in law wrongful and improper and that would certainly justify and call for interference from the appellate Court........" In view of what has been stated aforesaid, I do not find anything there which stands in the way of the defendants to refuse the prayer for stay under S.34 of the Act, which was made before the trial Court. The present case does not come within any of the exceptions laid down in AIR 1960 SC 1156 . 19 Learned counsel for the respondent also attacked the affidavits which were filed on behalf of the defendants in the trial Court. It appears that the affidavits which were filed by the respondent were also similar and in major portions of those affidavits of defendants, statements were made by way of submissions. The trial Court, therefore, was right in stating after perusal of those affidavits, that technically there was not much which can be said against such affidavits. In my opinion, this point attacking the affidavits had no substance. 20. The trial Court, therefore, was right in stating after perusal of those affidavits, that technically there was not much which can be said against such affidavits. In my opinion, this point attacking the affidavits had no substance. 20. In the result and for the conclusions arrived at above, the appeal succeeds, the impugned order is hereby set aside and the application under S.34 of the Act filed by the defendants-appellants in the trial Court stands allowed. Under the circumstances, there will be no order as to costs. B.S.SINHA, J. 21 I agree.