JUDGMENT S.C. Mohapatra, J. - Plaintiff in a suit for realisation of money is appellant. 2. State Government undertook export of iron ore from Paradeep. Such iron ore was to be transported from mines in Sukinda area to Paradeep. In early part of 1957, State Government purchased boats and engaged persons to operate them for transport of iron ore to Paradeep through inland water ways. State Government engaged one Satrughna Sahu as contractor for efficient transportation. Defendants Nos. 1 to 3 in Partnership formed an association named the Cuttack Motor Launch Association of which defendant No. 1 was the Secretary and in that name they were carrying on business. Launches belonging to them were being hired by State Government through the transport contractor for touring the boats loaded with iron ore to be carried to Paradeep in the inland water ways from Jenapur and Cuttack to Paradeep. While they were so engaged on 10-11-1958, defendant No. 1 made an application to the State Government for a loan of Rs. 56,000/- to purchase three powerful marine engines to be fitted to the launches belonging to the defendants for touring the boats carrying loads speedily since they had carried the transport work for Government for sometime. On this application, State Government sanctioned loan amounting to Rs. 50,000/-. Thereafter, defendant No. 1 for himself and on behalf of defendant No. 3, owner of launches M.L. Mahabir and Jamuna and defendant No. 2 owner of M.L. Parijata and Lakshmi who hod authorised defendant No. 1 to look after their business by a general power of attorney registered on 21-2-1959 executed and registered an agreement (Ext. 2) on 25-2-1959 for a loan of Rs. 50,000/- for purchase of three engines. In the bond M.L. Mahabir, Parijata, two boots and the new engines were furnished as security. It was signed by three defendants Nos. 1 to 3 on the one hand and Under Secretary on behalf of plaintiff. Another agreement was executed on the same day (Ext. 5) for carrying on the transport of 20,000 tons of ore per year. Transport agreement operated from 2-3-1959 and defendants began transporting ore to Paradeep. Loan amount was also paid. Instead of purchasing powerful engines defendants purchased two second-hand launches. One engine which was purchased by State Government was handed over to defendants and some amount towards the same was paid by defendants to the supplier. Transport agreement operated from 2-3-1959 and defendants began transporting ore to Paradeep. Loan amount was also paid. Instead of purchasing powerful engines defendants purchased two second-hand launches. One engine which was purchased by State Government was handed over to defendants and some amount towards the same was paid by defendants to the supplier. From out of the charges receivable by defendants, some amount was adjusted towards the loan amount with interest as stipulated in the agreement. Sometime in the month of November, 1960 defendants stopped transporting iron ore. Balance loan amount remained unpaid. To recover the same State Government filed the suit. 3. Defendants contested the suit on the ground that the two agreements are composite in nature and State Government having failed to perform its part of the agreement and having committed breach of contract, the amount is not recoverable. It further took the defence that the launches were given in security and they were offered to State Government to take charge. Accordingly, loan amount, if any, are to be recovered from out of the launches. 4. Trial Court settled seven issues. On behalf of plaintiff one witness was examined to produce and prove documents. Twenty documents were proved and marked Exts.1 to 20 in support of the claim. Four witnesses including defendant No. 1 were examined on behalf of defendants. Documents marked Exts. A to Z/20 were proved in support of their cases. 5. On consideration of materials trial Court held that Exts. 1 and 2 the two agreements dated 25-2-1959 are complementary to each other. Loan was advanced in furtherance of and for due performance of the contract made under Ext. 5 for transport of 20,000 tons of ore each year. Amount of Rs. 50,000/- was given as an advance and not as loan. Before termination of agreement under Ext. 5 no cause of action would arise under Ext. 2 for realisation of the dues. Since defendants stopped transportation of ore on account of depth of water level in the canal not being maintained by plaintiff which is implied in the transportation contract (Ext. 5), defendants are not to perform their part of the contract of paying back the money as provided under Sections 53 and 54 of the Contract Act. Trial Court drew adverse inference against the plaintiff for non-examination of some of its officers and for non-production of some documents. 5), defendants are not to perform their part of the contract of paying back the money as provided under Sections 53 and 54 of the Contract Act. Trial Court drew adverse inference against the plaintiff for non-examination of some of its officers and for non-production of some documents. It held that before selling the securities, plaintiff has no cause of action for recovery of money, trial Court held that in view of the arbitration clause suit is not maintainable. Defendants are entitled to the expenditure incurred for guarding the vessels. 6. Learned Advocate General assailed the judgment in respect of each of the aforesaid findings. 7. Learned Advocate General submitted that mere existence of arbitration clause is not a bar to suit. When a suit is filed, defendant at the earliest opportunity can move for stay of the suit as provided in Section 34 of the Arbitration Act. Where defendant does not claim for stay of suit, there is no bar for continuance of the same. There is force in contention of learned Advocate General. In the case, defendants did not ask for stay of the suit. They filed the written statement and took part in the trial. Accordingly, finding that the suit is not maintainable in view of Section 34 of the Arbitration Act is not correct. 8. Main question for consideration in this case is whether Ext. 2 and Ext. 5 are composite contracts or there are implied terms in the contracts, breach of which would attract Sections 53 and 54 of the Contract Act. 9. There is no doubt that defendants offered to carry on transport of ore independently having agreement with Government and for that purpose requested for a loan of Rs. 56,000/- to have three powerful engines for the launches to tour the boats loaded with iron ore. State Government in Planning and Co-ordination (Paradeep Port) Department entered into two agreements with defendants. One is the loan of Rs. 50,000/- with terms contained therein and the other, the transport agreement. Perusal of the two agreements indicate that each one is independent of the other. Although for giving benefit to defendants to execute the transport contract, State Government gave the loan and also accommodated defendants to pay a percentage of the bill amount, there was no implied term that transport contract failing, loan would not be recoverable. Perusal of the two agreements indicate that each one is independent of the other. Although for giving benefit to defendants to execute the transport contract, State Government gave the loan and also accommodated defendants to pay a percentage of the bill amount, there was no implied term that transport contract failing, loan would not be recoverable. Rather for avoiding such a situation, it was specifically stated in the term of loan agreement that in case repayment of loan by instalment becomes impossible, defendant shall be liable to refund the entire amount outstanding at that time. This indicates that loan is not a part of the transport agreement and there was no implied term that in case plaintiff is responsible for the non-performance of its part of the contract, loan would not be recoverable. To such a case Sections 53 and 54 of the Contract Act have no application. 10. It is submitted on behalf of defendants that loan is to be paid from out of the bills which is the normal mode of payment. In the event either party terminates the transport contract resulting in the contractor having deprived of opportunity to earn any hire charges the amount outstanding shall be refunded with interest immediately and in case defendants fail to refund, plaintiff can sell the security specified in the schedule to recover the amount without approaching Court of law. Therefore, suit is not maintainable without selling the securities. I do not inclined to accept the same. There is no bar for plaintiff to approach the Court for recovery of the loan outstanding through Court without selling the securities. Option in the contract is not a condition precedent in the terms for recovery of loan. Therefore, suit is maintainable. 11. It is seen from the documents that defendants stopped transport. May be that plaintiff did not take steps for easy movement of iron ore. If defendants would have filed suit for breach of contract, it would have required as to examine whether plaintiff committed breach of contract so as to award damages for breach of contract. In such a case, it would have been required to examine whether failure of one department of Government would make another department responsible for such failure when the contract was with one department. In such a case, it would have been required to examine whether failure of one department of Government would make another department responsible for such failure when the contract was with one department. Therefore, failure of irrigation department to maintain water level in the canals may not by itself be sufficient to come to conclusion that Paradeep Port department would be liable for the failure of irrigation department. In such a case implied terms in the agreement may not be possible to be attracted. 12. Although I am inclined to hold that realisation of balance loan amount with interest as given in the plaint schedule is to be decreed. I find that situation not envisaged arose. Neither plaintiff nor defendants invited such a position. In the circumstances, without giving a direction for realisation of amount by instalments. I give liberty to defendants either to approach plaintiff for permitting them to pay the decretal amount in instalments or in case execution proceeding is initiated to pray in the executing Court for grant of payment, by instalment. Such application shall be considered on its own merits. 13. In the result, appeal is allowed. No costs. Appeal allowed. *-*-*-*-*