Judgment : The plaintiff in O.S.No.5927 of 1994 on the file of the XIth Assistant Judge, City Civil Court, Madras has filed this civil revision petition, which arises out of I.A. No.14670 of 1994 (wrongly mentioned as I. A. No. 14670 of 1994 in the memorandum of grounds of civil revision petition). The said I.A. was filed by the defendants 1 to 3 in the said suit under Sec.34 of the Arbitration Act, praying for stay of the said suit under the said provision, on the ground that the parties are bound by the arbitration clause in the agreement dated 211. 1992 between the parties. Though the said I.A. was dismissed by the trial court, on appeal by defendants 1 to 3 (respondents 1 to 3 herein) in C.M.A. No.148 of 1994, the lower appellate court while allowing the appeal, granted the stay prayed for and hence the present civil revision petition by the plaintiff. Defendant No. 1 is the Indian Oil Corporation and defendants 2 and 3 are only officials of the said Corporation. 2. By the abovesaid agreement, house keeping contract was given by the said Corporation in favour of the plaintiff with effect from 9. 1992 for a period of one year ending with 38. 1993. Further, admittedly the said agreement was extended for another one year upto 38. 1994. In the plaint dated 8. 1994 in the said suit, the main allegations, in short, are as follows: Despite the fact the abovesaid contract in favour of the plaintiff is subsisting till 38. 1994, on 24. 1994 the said Corporation called for tenders for the same house keeping work and, to the lawyer’s notice dated 24. 1994 issued by the plaintiff to the 3rd defendant complaining about it, there was no reply. On 24. 1994, the said Corporation has also issued tender forms for the abovesaid house keeping work to certain persons and the abovesaid tender form would be submitted to the 1st defendant in sealed covers and the sealed covers would be opened on 25. 1994. Therefore, the plaintiff filed W.P. No.9604 of 1994 in this Court to quash the said tender forms issued. The said writ petition was admitted and notice was ordered with some observations. While so, the 3rd defendant served the order of termination dated 7. 1994, of the abovesaid contract, against the plaintiff on 7. 1994. 1994. Therefore, the plaintiff filed W.P. No.9604 of 1994 in this Court to quash the said tender forms issued. The said writ petition was admitted and notice was ordered with some observations. While so, the 3rd defendant served the order of termination dated 7. 1994, of the abovesaid contract, against the plaintiff on 7. 1994. Therefore, the plaintiff also filed W.P. No.11945 of 1994 to quash the abovesaid termination order dated 7. 1994. But, the said writ petition was not admitted, relying on clause 16 of the abovesaid agreement. The said clause states that the said Corporation reserved the right, to award the contract to any other person, or to terminate the abovesaid agreement, without giving any notice to the plaintiff, and no compensation is payable by the said Corporation for any action by it. The plaintiff preferred W.A. No.962 of 1994, where the arbitrariness of the abovesaid clause 16 was brought to the notice of the court. The said writ appeal was disposed of with the following observations: “The contract being a non-statutory one, the remedy, if any, of the petitioner lies before the Civil Court and not by way of writ petition. However, learned counsel for the appellant placed reliance on the last portion of clause 16 of the agreement and submitted that no compensation is payable by the Corporation for any action or actions by it under the agreement. Any clause in the agreement which takes away the right of the parties to approach the court for appropriate relief is opposed to law and public policy and cannot be considered to be valid.” A lawyer notice dated 24. 1994 was also sent by the plaintiff, to the Corporation. Therefore, the present suit was filed, claiming compensation to the extent of Rs.25,000 and for setting aside the abovesaid termination order dated 7. 1994 and for certain other reliefs. 3. It is in the said suit, the abovesaid I.A. was filed under Sec.34 of the Act and the material averments in the supporting affidavit are only the following: “......under clause 17 of the said agreement any dispute between the parties has to be referred to the Director (Marketing) of the Indian Oil Corporation Limited, Bombay for his arbitration. 3. It is in the said suit, the abovesaid I.A. was filed under Sec.34 of the Act and the material averments in the supporting affidavit are only the following: “......under clause 17 of the said agreement any dispute between the parties has to be referred to the Director (Marketing) of the Indian Oil Corporation Limited, Bombay for his arbitration. If the plaintiff is really aggrieved by the defendants 1 to 3’s action, the plaintiff ought to have referred the said dispute to the arbitration of the Director (Marketing) and shall not have filed this suit....... the defendant is ready and willing for arbitration......” 4. In the counter filed by the plaintiff, the allegations are briefly as follows: The disputes raised in the suit are not within the ambit of the arbitration clause. The agreement dated 211. 1992 is illegal in view of the above referred to clause 16 thereof. The Corporation did not give any reply to the above referred to lawyer notice by the plaintiff. The Corporation has mentioned about the arbitration clause for the first time on 28. 1994 and it has waived the arbitration clause. 5. The first argument of learned counsel for the petitioner is that while the trial court has refused to grant stay under Sec.34, the appellate court should not have lightly set aside the trial court’s order and granted stay. In other words, the contention is that ordinarily in such a case it is not open to an appellate court to substitute its own direction for that of the trial Judge. In this connection, he relied on the decisions in U.P. Co-operative Federation Limited v. Sunder Brothers,Delhi, A.I.R. J967S.C.249:(1987)2S.C.A. 80: (1966) S.C.R. (Supp.) 215, Vijayalakshmi Mills Limited v. Shab Naval Mal Gulabchand, A.I.R. 1987 A.P. 294 and Yeshwant Hiralal Veecumsee v. Usha Kumar Betala, (1985)1 M.L.J. 289: A.I.R. 1985 Mad. 272. 6. But, it should be also noted that what has also been observed in these decisions is that if it appears to the appellate court that in exercise of its discretion, the trial court, has acted unreasonably and capriciously, or has ignored the relevant facts and has adopted an unjudicial approach, then it would be certainly open to the appellate court to interfere with the trial court with the exercise of its discretion. Therefore, it has to be seen how actually in the light of the facts and circumstances of this case, the appellate court has acted. This will be seen presently in the course of further discussion. 7. Before, entering into that discussion, I must also refer to one other argument of learned counsel for the petitioner, that in view of the fact that there was no reply to the above referred to suit notice dated 24. 1994, it should be held that the aforesaid Corporation was not ready and willing to do all things necessary to the proper conduct of the arbitration, at the time when the suit was commenced, as prescribed in Sec.34 of the Act. In this connection, he also relied on the decision in Food Corporation of India v. Thakur Shipping Company, A.I.R. 1975 S.C. 469. .8. But, as pointed out by learned counsel for the abovesaid respondents herein, in the affidavit in support of the abovesaid I.A. No. 14920 of 1994, which was filed on 28. 1994, it was specifically averred that the said respondents were ready and willing for arbitration. It must be noted that the plaint itself is dated only 8. 1994 and very soon thereafter in the supporting affidavit dated 28. 1994 filed in the said I.A., the abovesaid averment regarding readiness and willingness is found. So, it cannot be said that the said Corporation was not ready and willing for arbitration at the commencement of the suit. 9. Further, the abovesaid suit notice was actually prior to the abovesaid termination order dated 7. 1994, and it only stated that the plaintiff came to know that the said respondents had called for tenders and that if the abovesaid information was correct, it would be illegal and that the petitioner is entitled to carry on house keeping work up to 38. 1995. Therefore, in the said suit notice, the demand against the said respondents was that they should not call for tenders and the petitioner was entitled to carry on the abovesaid house keeping work till 38. 1994. Only to this suit notice, there was no reply. No compensation was claimed in the said notice as claimed in the plaint. Anyway, there was no reference in the said notice, to the above referred to arbitration spoken to in the agreement between the parties. 1994. Only to this suit notice, there was no reply. No compensation was claimed in the said notice as claimed in the plaint. Anyway, there was no reference in the said notice, to the above referred to arbitration spoken to in the agreement between the parties. In that light also even though there was no reply to the said suit notice, it cannot be said that the said Corporation was not ready and willing for arbitration at the commencement of the present suit. .10. Regarding the abovesaid readiness and willingness, learned counsel for the petitioner also relies on Hindustan Aluminium Corporation Limited v. N.Baldeodas, (1976)2 M.L.J. 323 . But, it must be stated that the said decision turned on its own facts. There, the defendant had enough time to file the written statement, but he did not do so and the time granted under the Original Side Rules had expired and therefore, the suit was posted in the undefended board. In such a case, the court held that even assuming that the defendant therein entered appearance at that stage and prayed for time only to file an application under Sec.34, the defendant was only attempting to circumvent the statutory provision under Sec.34 and take a chance later on. Consequently, the court held that the defendant was not ready and willing. In such a situation, when subsequently the defendant filed Sec.34 application, the court held that the abovesaid application under Sec.34 should be dismissed. But, the facts in the present case are entirely different, as already indicated, and so, the said decision has no application to the present case. 11. Likewise the decision in State of U.P. v. Janaki Saran Kailash Chandra, (1973)2 S.C.C. 96 : A.I.R. 1973 S.C. 2071: (1973)1 S.C.W.R. 797:1973 S.C.D. 556, relied on by the said learned counsel also has no application to the present facts. In the view, thus I have taken, there is no necessity to refer to Satish Kumar v. B.S.Komal, A.I.R. 1994H.P. 114 and Great Success Maritime and Trading Company Limited v. Raj Maritimes and others, (1994)2 L.W. 561 relied on by learned counsel for the said respondents. 12. Further, it must be noted that it is not the case of the said respondent that there was any termination of the abovesaid contract in favour of the plaintiff prior to the abovesaid dated 7. 12. Further, it must be noted that it is not the case of the said respondent that there was any termination of the abovesaid contract in favour of the plaintiff prior to the abovesaid dated 7. 1994, the date when the abovesaid termination order was passed. May be, prior to 7. 1994, the plaintiff might have been under the apprehension that the abovesaid contract would be terminated since tenders were called for, as stated above. But, the termination order was passed only on 7. 1994 on the ground that the plaintiff has "committed various breaches of the terms of the contract" as stated in the said termination order. Learned counsel for the said respondents also points out that in the said termination order, the above referred to clause 16 of the agreement between the parties was also referred to. But, learned counsel for the petitioner argues that the said clause 16 is not valid in law and on that ground, the entire agreement would became invalid. He also points out that said order is based on a vague allegation. 13. No doubt, in the abovesaid termination order only a vague allegation is there, stating that the plaintiff has "committed various breaches of the terms of the contract." But, if really the plaintiff is aggrieved by such vague allegation, he could have sought for arbitration pursuant to clause 17 of the abovesaid agreement. But, the plaintiff has not chosen to take that course even though he has agreed to do so under the abovesaid agreement. No doubt, according to learned counsel for the petitioner, in view of the above referred to clause 16 of the agreement, the whole agreement is bad. But, I must point out that such a contention has not been taken at all in the plaint. On the other hand, only based on the abovesaid agreement, the suit is laid for the alleged breach of the said agreement by the said respondents. 14. No doubt, in the counter to the abovesaid I. A., the abovesaid contention that in view of clause 16, the whole agreement is bad, has been taken up. On the other hand, only based on the abovesaid agreement, the suit is laid for the alleged breach of the said agreement by the said respondents. 14. No doubt, in the counter to the abovesaid I. A., the abovesaid contention that in view of clause 16, the whole agreement is bad, has been taken up. But, regarding this aspect, in order in the abovesaid W.P. No. 11945 of 1994, while distinguishing the decision given in Raghunath Thakur v. State of Bihar, A.I.R. 1989 S.C. 620: (1989)1 Comp.L.J. 53, I have stated as follows: "In this connection, the Supreme Court observed that even if there is no requirement specifically of giving notice it is an implied principle of rule of law that any order having civil consequences should be passed only after following the principle of natural justice. Thus, the Supreme Court laid down the abovesaid rule when the relevant rule is silent on the question of giving notice. But, in the present case, the writ petitioner has entered into an agreement with the 1st respondent-Corporation, where he himself has chosen to abide by the abovesaid clause 16, stating that the 1st respondent-Corporation could terminate the contract in his favour, even without giving any notice. So, I do not think that the said decision would apply to the present case. The said learned counsel also could not bring any authority to my notice, which states that even where such clause is there in the agreement between the parties, notice has necessarily to be given before termination." 15. No doubt, now, before me, learned counsel for the petitioner relies on the decision in Shyam Gas Company v. State, A.I.R. 1991 All. 129. There, no doubt, the Allahabad High Court held that clause 18 of the relevant agreement therein between the petitioner therein and the petroleum Corporation, providing for termination of the said agreement of agency by giving 30 days, notice without assigning any reason, was held to be void. But, that decision turned on its own facts, similar necessary facts have not been alleged and proved, in the present case. But, that decision turned on its own facts, similar necessary facts have not been alleged and proved, in the present case. In that case, it was found on facts that the petitioner therein obtained distributorship for L.P.G. cooking gas from the above petroleum Corporation under schedule caste quota and that in order to obtain the said distributorship, he had no option but to accept all the conditions in the contract as it was his source of livelihood and that he was not in a position by any stretch of imagination to enforce the said Corporation to eliminate the abovesaid clause 28 from the contract and that the said agreement could not be termed either as commercial or business transaction or a transaction between two equals, where rights and obligations were negotiable as between two independent contracting parties. Only on the abovesaid facts proved, in that case, the court held that the abovesaid clause 28 was void. But, in the present case, as already mentioned, there is neither plea, nor proof of any such similar situation in relation to the petitioner herein in his abovesaid dealings with the abovesaid respondents I must also point out the following observation found in the said Allahabad decision itself: "The aforesaid conclusion would not mean derogating the principles of contract for the purpose of enforcibility of the rights of the parties flowing through it. The above exception has been carved out to salvage exceptionally placed downtrod- den, economically distressed, invalids, socially weak not being able to enforce their existing rights, finding no avenue of their livelihood etc., the details of which cannot be exhaustively enumerated, against State’s arbitrary action by placing a clause against public policy in terms of a contract. We further want to make it absolutely clear that in applying this principle court should examine each case on its facts with precision as to avoid its application is generality to obliterate or dilute the contract." 16. No doubt, learned counsel for the petitioner drew my attention to the above referred to passage in the order in W.A. No.962 of 1994, which was preferred against my abovesaid order in the writ petition. No doubt, learned counsel for the petitioner drew my attention to the above referred to passage in the order in W.A. No.962 of 1994, which was preferred against my abovesaid order in the writ petition. He particularly points out the following observation therein: "Any clause in the agreement which takes away the right of the parties to approach the court for appropriate relief is opposed to law and public policy and cannot be considered to be valid." But, first of all it must be noted that even the above referred to clause 16 of the agreement does not say that the right of any party to approach the court for appropriate relief is taken away. It only says, as already mentioned that the Corporation reserved the right at any time to award parallel contract to any other persons, or to terminate the abovesaid agreement, without giving any notice to the petitioner herein and that no compensation is payable by the Corporation for any action by it under the abovesaid clause 16. No doubt, in clause 16 of the agreement it is stated that in the event of any dispute, the matter shall be referred to arbitration, stated above. Certainly this cannot be said to be opposed to law or public policy. In other words, it cannot be said from the abovesaid observation of the Bench in the writ appeal that the Bench held that the said clause 16 is bad in law. 17. Further, learned counsel for the petitioner also relies on the following observation of the said Bench to contend that only suit will lie to resolve the above referred to dispute between the parties and there is no necessity or warrant for driving the petitioner only to arbitration for resolving the said dispute. "The contract being a non-statutory one, the remedy, if any, of the petitioner lies before the Civil Court and not by way of writ petition". But, it is clear that this observation is made only to emphasize that the writ remedy will not lie. This does not mean that when the agreement between the parties provide for arbitration, even then, a suit or a proceeding in a Civil Court alone will lie. In fact, the Bench itself later observes thus: “Further, the terms of the agreement specifically provide for arbitration. This does not mean that when the agreement between the parties provide for arbitration, even then, a suit or a proceeding in a Civil Court alone will lie. In fact, the Bench itself later observes thus: “Further, the terms of the agreement specifically provide for arbitration. Therefore, it is open to the petitioner/ appellant to raise a dispute and have it decided by the arbitrator also.” So, if the agreement between the parties provided for arbitration, the petitioner should resort to the said course. But, that has not been done by the petitioner. In such a situation, the abovesaid respondents are entitled to invoke Sec.34 of the Act when the petitioner has chosen to file the present suit. 18. Learned counsel for the petitioner also relies on National S.I. Corporation v. Punjab T.P. & M. Industries, A.I.R. 1979 Delhi 58 to contend that for stay of suit under Sec.34, existence of dispute is essential. But, in the present case, there is no doubt that there is dispute between the parties. That is why the petition has come forward to the civil court for resolving the said dispute and the only question is, whether for resolving the said dispute, the petitioner should go in for arbitration only as provided under the abovesaid clause 17 of the agreement, and I have already indicated that he should do so and should not have filed the suit. 19. The other decision cited by learned counsel for the petitioner, viz., M/s. Vasanji Navji and Company v. M/s.K.P.C. Spinners. (1982)2 M.L.J. 216 : A.l.R. 1983 Mad. 31: I.L.R. (1983)1 Mad. 221, also has no application to the present case. There, on facts, it was found that the abovesaid Sec.34 could not come into play at all since the contract which provided for arbitration had completely been performed and nothing remained to be done under that contract and that the defendant’s liability, which was sought to be enforced in the suit arose only out of dishonouring of the cheques issued by it. 20. In the light of the above features, it is clear that the lower appellate court is justified in interfering with the order of the trial court. The trial court, in a very short order, comes to the conclusion that the Corporation has no interest in resolving the dispute by way of arbitration prescribed under the agreement between the parties. 20. In the light of the above features, it is clear that the lower appellate court is justified in interfering with the order of the trial court. The trial court, in a very short order, comes to the conclusion that the Corporation has no interest in resolving the dispute by way of arbitration prescribed under the agreement between the parties. In the light of what has been stated above, there is no justification at all for coming to such a conclusion. 21. Further, the trial court’s further reasoning that only a civil court has jurisdiction to go into the question regarding the validity of the above referred to termination claimed in the suit, is totally unjusti- fied, since even an arbitrator can validly go into such questions. 22. In the result, the civil revision petition is dismissed. However in the circumstances of the case, there will be no order as to costs. C.M.P. No.4817 of 1995 for stay is consequently dismissed.