JUDGMENT C. P. Sen, J. - This is an appeal under Section 30(v) of the Arbitration Act, 1940, against the order of the learned District Judge rejecting the application for staying the suit under Section 34 of the Act. The plaintiff is a private limited company registered under the Companies Act with its head office at Bhopal and engaged in the business of rendering consultancy service to the small-scale and large industries. The defendant is a joint sector project of U.P. Government with 26 share and is manufacturing and supplying computers. The plaintiff placed an order dated 30th March, 1979 for purchase of SCL-8C Minicomputer system from the defendant as per letter Ex. D. 6 and the purchase orders Exs. D. 2 to D. 4. The defendant gave warranty for one year and agreed to maintain the same for a period of 5 years after expiry of the warranty period at annual charge of Rs. 36,000. According to the plaintiff, the delivery of the minicomputer with its accessories was to be given by 10th June, 1979 which the defendant failed to comply. Thereafter, on repeated requests incomplete computer was supplied on 21-9-79. The computer started giving trouble and the defendant failed to maintain the installation as agreed and the warranty period was extended up to 31-3-1981. Even thereafter the installation remained under breakdown condition in spite of various complaints by the plaintiff. As a result, the plaintiff suffered losses. The plaintiff, therefore, laid a claim of rupees 16 lacs and odd as damages against the defendant by serving a notice. The defendant by its reply denied the allegations and the claim of the plaintiff. Therefore, the plaintiff filed the present suit claiming damages of rupees 7 lacs by giving up the remain claims. After receiving summons of the suit, the defendant filed an application under Section 34 of the Arbitration Act that as per the concluded contract all disputes and the differences are, to be settled by the arbitrator to be nominated by the Managing Director of the defendant-company and the entire contract is contained in Exs. D. 2 to D. 6 including D. 5 which is the printed terms and conditions containing arbitration clause 26. The application was opposed by the plaintiff saving that Ex. D. 5 did not form part of the contract nor there was any agreement for referring the dispute to arbitration. D. 2 to D. 6 including D. 5 which is the printed terms and conditions containing arbitration clause 26. The application was opposed by the plaintiff saving that Ex. D. 5 did not form part of the contract nor there was any agreement for referring the dispute to arbitration. For deciding the application the defendant filed affidavit of A. K. Talwar, its sales-manager, and the plaintiff filed affidavit of K. B. Chakraborti, its Chairman and Director. Both the witnesses were cross-examined by the opposite counsel. The District Judge held that Ex. D. 5 did not form part of the contract between the parties. Although Exs. D. 2 to D. 4 are duly signed by both the parties, no signature have been taken on Ex. D. 5 so as to make it a part of the contract. Prior correspondence between the parties before finalising the contract did not show that there has to be arbitration of their disputes. Purchase orders Exs. D. 2 to D. 4 were subject to the terms and conditions overleaf but no such terms and conditions were on the overleaf. The only question for consideration is whether Ex. D. 5 containing printed terms and conditions was part of the contract entered into between the parties and as to whether the defendant at all material times was ready and willing to abide by the arbitration. Under Section 34 of the Act where a party to arbitration agreement in respect of any matter agreed to be referred commences any legal proceedings against the other party, the other party may at any time before filing written statement or taking any other steps in the proceedings, apply for stay of the proceedings provided the other party was and still remains ready and willing for arbitration. The Supreme Court in Anderson Wright Ltd. v. Moran & Co. The Supreme Court in Anderson Wright Ltd. v. Moran & Co. ( AIR 1955 SC 53 ) while interpreting Section 34 held that the following conditions should be fulfilled for staying the legal proceedings : (i) The proceedings must have been commenced by a party to the arbitration agreement; (ii) the legal proceeding must be in respect of a matter agreed to be referred; (iii) the applicant for stay must be a party to the legal proceeding and he must have taken no steps in the proceedings after appearance and that he was and he is ready and willing for arbitration, and (iv) 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. The Supreme Court in Printers Private Ltd. v. P. Joseph ( AIR 1960 SC 1156 ) held that power to stay legal proceedings under Section 34 is discretionary and so a party to an arbitration agreement against whom legal proceedings have been commenced cannot be relying on the arbitration agreement claim the stay of legal proceedings instituted in a court as a matter of right. However, the discretion vested in the court must be properly and judicially exercised. Ordinarily, the court would direct the parties to go before the tribunal of their choice and stay the legal proceedings instituted before it by one of them. But it is ordinarily not open to the appellate court to substitute its own exercise of discretion for that of the Trial Court, 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 unjudicial approach then it would uncertain by 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. Reiterating this principle, the Supreme Court in U.P. Co-operation Federation v. Sunder Bros. Delhi ( AIR 1967 SC 249 ) held that where the discretion vested in the court under Section 34 has been exercised by the lower court, the appellate court would be slow to interfere with the exercise of their discretion. Reiterating this principle, the Supreme Court in U.P. Co-operation Federation v. Sunder Bros. Delhi ( AIR 1967 SC 249 ) held that where the discretion vested in the court under Section 34 has been exercised by the lower court, the appellate court would be slow to interfere with the exercise of their 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 the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary conclusion. Further the Supreme Court in Food Corporation of India v. Thakur Shipping Co. (AIR 1975 SC 269) has held : "An applicant for stay of legal proceedings under this section most satisfy the court not only that he is but also was at the commencement of the proceedings ready and willing to do everything necessary for the proper conduct of the arbitration. Thus the readiness and willingness must exist not only when an application for stay is made but also at the commencement of the legal proceedings." On going through the order of the learned District Judge, it cannot be said that his findings are unreasonable or capricious or that he has ignored certain relevant facts. It may be that another view of the findings of fact recorded by him may be possible but that is no a ground for interfering with the findings. It is not in dispute that by letter Ex. D. 6 the plaintiff placed purchase orders Exs. D. 2 to D. 4 for purchase of HCL-8C mini-computer. Ex. D. 2 was about purchase of hardware, i.e., the main machine or computer, Ex. D. 3 is about purchase of brought outs, i.e., tapes, floppy discs, etc. and Ex. D. 4 is about installation services. The purchase orders were as per terms and conditions of sale overleaf. No terms and conditions were either typed or printed overleaf. However, the defendant came out with a plea that Ex. D. 5 which are the printed terms and conditions of sale of the defendant concern were part of the contract and Exs. D. 2 to D. 6 formed the complete contract. Admittedly, Ex. D. 5 is a separate document and is not signed while Exs. However, the defendant came out with a plea that Ex. D. 5 which are the printed terms and conditions of sale of the defendant concern were part of the contract and Exs. D. 2 to D. 6 formed the complete contract. Admittedly, Ex. D. 5 is a separate document and is not signed while Exs. D. 2 to D. 4 are signed by both the parties. The defendant contended that in the purchase orders it is mentioned that they are subject to the terms and conditions overleaf and since there are no terms and conditions on the overleaf and it has to be somewhere, that is, by way of a separate document which is nothing but Ex. D. 5. A. K. Talwar, Sales-Manager, in his affidavit asserted that it was not the practice of the concern to take signatures of the parties on the printed terms and conditions. Since the printed terms and conditions were common to Hardware, brought outs and installation services, it was much more convenient to have a common set of terms and conditions covering all the three Orders and all the terms and conditions could not have been incorporated on the reverse of Exs. D. 2 to D. 4. It is also contended that the sale of hardware attracted payment of excise duty and sales-tax and this can only be gathered by looking into Ex. D. 5 as there is no mention of payment of excise duty and sales tax in Exs. D. 2 to D. 4 and D. 6. Reliance has also been placed on a decision of the Calcutta High Court in Abu Road Electricity Co. v. Industrial Cases ( AIR 1977 Cal 482 ) that when the contract is one and the same between the same parties in respect of one and single transaction and it is subject to general sales conditions which are not incorporated but were only referred to express language in the offer, the general sales conditions formed part of the contract and the parties were bound by them including the arbitration clause. Reliance has also been placed on a decision of the Madras High Court in T.N. Rao Firm v. Balabhadra (AIR 1954 Madras 71) that contract referring to another document containing arbitration clause - document can be deemed to be incorporated in contract if it conditions agreement between the parties. Reliance has also been placed on a decision of the Madras High Court in T.N. Rao Firm v. Balabhadra (AIR 1954 Madras 71) that contract referring to another document containing arbitration clause - document can be deemed to be incorporated in contract if it conditions agreement between the parties. The learned District Judge has preferred the affidavit of K. B. Chakraborti, Chairman and Managing Director of the plaintiff company in preference to the affidavit of A. K. Talwar, Sales-Manager, and he has given reasons for the preference. The most important circumstances being absence of signatures of the parties on the terms and conditions Ex. D. 5. Its physical existence is separate from other documents Exs. D. 2 to D. 4. It is improbable that the document containing important terms and conditions would not be signed by the parties if it was intended to form part of the contract. During his cross-examination, Talwar admitted that Exs. D. 2 to D. 4 were brought to him by the defendant for execution and these documents are signed by both the parties. The defendant gave offer vide Ex. P. 2 subject to terms and conditions annexed therewith Ex. P. 3. According to Talwar Exs. P. 2 and P. 3 contained terms and conditions of sale. There is no mention in the terms and conditions for referring the dispute to arbitration. There was long correspondence between the parties and in none of these documents there is any reference about arbitration. The contract was finally struck by Ex. B. 6 which mentions that following terms are also agreed. This is sought to be interpreted that there were other terms and conditions as mentioned in Ex. D. 5. Since there were no printed terms & conditions overleaf, necessarily the same must have been incorporated in separate document. If that was so, in Exs. D. 2 to D. 4 the reference should have been "as per printed terms and conditions annexed therewith" and not "terms and conditions overleaf." Since the defendant had already given its terms and conditions of sale as per Ex. P. 3, there was no necessity of again mentioning terms and conditions overleaf. Subsequently, the plaintiff entered into some contracts with the defendant vide Exs. P. 21 and P. 22 and on the reverse of these documents terms and conditions are printed containing arbitration clause. P. 3, there was no necessity of again mentioning terms and conditions overleaf. Subsequently, the plaintiff entered into some contracts with the defendant vide Exs. P. 21 and P. 22 and on the reverse of these documents terms and conditions are printed containing arbitration clause. It appears that it was the practice of the defendant concern to incorporate arbitration clause in the sales effected by it in its earlier transactions prior to the suit transaction and in subsequent transactions also but somehow the printed terms and conditions were not made part of the suit contract and rightly this document is subject to be introduced by way of an after thought as has been held by the District Judge. Ex. P. 23-A, P. 28 to P. 30 also do not contain any printed terms and conditions overleaf and it has rightly been printed out by Chakraborti that these contracts were as per suit contract dated 30-3-1979 vide Ex. D. 6. This is clear from Ex. P. 23 that all terms and conditions will be as per earlier purchase order dated 30-3-79. There is another reason why Ex. D. 5 could not be part of the suit contract because clause if which is also another arbitration clause recites that all disputes and differences have to be settled by arbitration and all such arbitration shall be held at Allahabad. Admittedly, at the relevant time the defendant had no office at Allahabad nor the parties had agreed that such arbitration proceedings shall be held at Allahabad. As such, this clause is otiose to the suit contract. Since Ex. P. 3 mentioned that excise duty and sales-tax will be charged separately, there was no need to mention this fact in Exs. D. 2 to D. 4 & D. 6. Besides, clause 29 reads that this document together with any attachment hereto sign by both parties shall constitute binding contract between the parties. According to the learned counsel for the appellant, the attachment has to be signed and not the document otherwise there should have been a come after the word 'hereto'. This contention cannot be accepted. It is difficult to accept that the printed terms and conditions which are contained in a separate document, without it being signed by the parties, mention of such printed terms and condition can be assumed to be incorporated in the purchase orders Exs. This contention cannot be accepted. It is difficult to accept that the printed terms and conditions which are contained in a separate document, without it being signed by the parties, mention of such printed terms and condition can be assumed to be incorporated in the purchase orders Exs. D. 2 D. 4 or in the letter Ex. D. 6. Since these documents did not incorporate by reference to the printed terms and conditions Ex. D. 5, the Calcutta and Madras cases has no application here. It is also pertinent to mention that in spite of 2 demand notices by the plaintiff claiming damages, the defendant sent its reply but nowhere mentioned that there is an arbitration clause and, therefore, the matter should be referred for arbitration. He also cited a decision of the Supreme Court in State of Punjab v. Geeta Iron & Brass works ( AIR 1978 SC 1608 ) that as a matter of law mere silence on the part of the defendant when a notice u/s. 80 CPC is sent to him may not, without more, disentitle him to move u/s. 34 and seek stay. This case is clearly distinguishable. There, the defendant did keep silence and did not care to send any reply to the notice. But here the defendant did send a written reply refuting the claim and still not mentioning about the arbitration clause. The defendant could not have failed to mention this fact particularly when the arbitration was to be nominated by the Managing Director of the defendant-concern. The defendant ought to have be earlier opportunity in its reply shown its readiness and willingness to go for arbitration but there was no such assertion in the reply. With the result, the appeal fails and it is dismissed with costs. Counsel's fee Rs. 500 if certified.