JUDGMENT 1. - The appellant was given a tender for supply of woollen cloth in December 1980 and he had deposited the earnest money of Rs. 20,000/- with the respondent. The tender was accepted on 17.12.1980. After the acceptance and completing of tender the earnest money which was also termed as security deposit was sanctioned to be refunded in the year 1981. The petitioner company has been writing to the respondent for refund of the earnest money, but without any result and ultimately a notice was also sent in the year 1983, that too was not cared. Per-force a suit was filed at the place where the petitioner was working i.e. at Amritsar in September 1993 for recovery of the amount of security and the interest thereon. However, because of the territorial jurisdiction, the plaint was returned and the same was filed at Jaipur and process notice was issued to the respondent. 2. From the record it is revealed that the respondent was summoned for 11.2.1991 on which date the advocate on behalf of the respondent-defendant Corporation had appeared. From the proceedings of the court on 3.5.1991, the case was adjourned for filing written statement to 31.7.1991. On 31.7.1991 it was again adjourned for filing written statement to 21.10.1991 and again it was adjourned to 6.1.1992 for filing the written statement and again it was adjourned to 13.3.1992 for filing written statement. On 13.3.1992 application for staying the proceedings under Section 34 of the Arbitration Act was filed. The trial court vide impugned order dated 5.8.1992 stayed the proceedings in the suit. Being aggrieved the petitioner company has filed the present misc. appeal for setting aside the order passed by the Additional District and Sessions Judge No.5, Jaipur City, Jaipur. 3. The counsel for the petitioner has submitted that tender process had since been completed in the year 1981, he was never informed of any dispute having arisen between the parties. Even the refund order had been passed and sanction was awarded. In the suit for recovery it was for the first time that the plaintiff was being told that there was some defect in the supply of the material and oppossed the suit. Even the refund order had been passed and sanction was awarded. In the suit for recovery it was for the first time that the plaintiff was being told that there was some defect in the supply of the material and oppossed the suit. To the application filed under section 34 of the Arbitration Act, the petitioner had taken the following objections amongst others:- "(i) The application is misconceived and contention of defendant that the matter cannot be adjudicated in suit in cases where arbitration agreement exists is not correct; (ii) The defendant has taken steps in the proceedings in as much as at the time of filing vakalatnama on 11.2.1991, the counsel for the defendant had informed that the written statement would be filed on the adjourned date. Again, he sought time on 31.7.1991 for filing written statement and the case was adjourned to 21.10.1991 for that purpose; (iii) The defendant has not stated or pleaded in the application that he was ready and willing throughout, since commencement of proceedings till filing of application to do all things necessary to the proper conduct of arbitration: (iv) The rayer made by the defendant is beyond the scope of Section 34 Arbitration Act and is not relevant." 4. It is further averred that the order of the trial court is in violation of Rule 787 of the Arbitrtation Rules framed by the Rajasthan High Court in exercise of the powers under Section 44 of the Arbitration Act to the effect that the application under Section 34 was not verified. It is further averred that the application did not comply with the provisions of law as required under Section 34. It was nowhere mentioned that the respondent was prepared and is prepared to abide by the arbitration clause and for the reasons that the application was defective, that should have been dismissed by the court. 5. The application moved by the respondent under Section 34 has neither been verified nor it is accompanied by the affidavit nor it is stated in the affidavit that the respondent is prepared and was ever prepared for referring the matter to the arbitration nor any details have been given in the application that the respondent was ever asked to get the matter referred. It is on record of the trial court that the petitioner had written many letters to the respondent to make the payment and even notice under section 80 Civil Procedure Code was issued to the respondent. Relying on clause 7 of the arbitration conditions to the effect that all disputes arising out of this agreement and all questions relating to the interpretation of any clause shall be referable to the arbitration and its decision shall be final and binding on the parties, the trial court had stayed the proceedings under section 34 of the Arbitration Act. 6. It is true that from the record of the trial court it is found that the counsel for the respondent had taken as many as four adjournments for filing the written statement. The question arises whether after having taken the adjournments on the ground of filing of the written statement, whether it is to be assumed that there was any intention of filing any application under section 34. Section 34 of the Arbitration Act reads as under:- "34. Where any party to an arbitration agreement or any person claiming under him commences and legal proceedings against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceeding; and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings.' 7. It has been held in Rachappa Guruadappa Bijapur v. Gurusiddappa Nurandappa & ors., 1989(1) U.J.(S.C.) 144 that the expression 'written statement' is a term of specific connotation ordinarily signifying a reply to the plaint filed by the plaintiff. The expression 'taking any other steps in the proceedings' does not mean that every step in the proceedings would come in the way of enforcement of the arbitration agreement. The expression 'taking any other steps in the proceedings' does not mean that every step in the proceedings would come in the way of enforcement of the arbitration agreement. The step must be such as would clearly and unambiguously manifest the intention to waive the benefit of arbitration agreement. In that case the petitioner had sought adjournment specifically for filing the written statement and had obtained time more than once for the said purpose and, therefore, it was found that the intention of the petitioner was clear to file the written statement and as such no application under Section 34 was maintainable. Yet, in the case State of Punjab v. M/s Geeta Iron & Brass Works Ltd., AIR 1978 SC 1608 , when a notice under Section 80 Civil Procedure Code was given by one of the party for recovery of the amount and the notice not having been replied to, the Apex Court had held that mere silence on the part of the defendant on the notice under section 80 Civil Procedure Code dis-entitles the defendant to move application under section 34 and seek stay. Similarl', Delhi High Court in Shri Parmanand Saluja v. Shri Sandeep Ajuja & anor., 1991(1) Current Civil Cases 89 had held that the defendant's action of having asked for time to file the written statement would amount to taking other steps in the proceedings in the suit and thus application under section 34 was barred. 8. From the record in the said case it is clear that on as many as four occasions the respondent had taken date for filing the written statement and thus was hit with the provisions of Section 34 of the Arbitration Act. 9. Even from the record of the trial court it is revealed that the petitioner had started asking for refund of the earnest money/deposit immediately after completion of the contract in the year 1981. Nothing has been produced by the respondent on record to show its intention of getting the matter referred to the arbitration. It is settled law that if the dispute had arisen as per the averment of the respondent, the respondent ought to have taken the matter within the period prescribed when the demand of the refund of earnest money was made, that not having been done atleast the respondent is debarred from taking any such plea. 10. It is settled law that if the dispute had arisen as per the averment of the respondent, the respondent ought to have taken the matter within the period prescribed when the demand of the refund of earnest money was made, that not having been done atleast the respondent is debarred from taking any such plea. 10. There is force in the submission of the counsel for the petitioner to the effect that even in the application dated 3.5.1991 moved on behalf of the respondent under Section 34 of the Arbitration Act, it has nowhere been mentioned that the respondent was willing and remained ready and willing to do all things necessary for the purpose of conduct of arbitration. It had been held by this court in Nagpur Golden Transport Company v. M/s Vimal Textiles, 1988(1) RLR 756 that if from a bare reading of the application, it is found that the application does not contain the clause of willingness, the application itself becomes defective and not in accordance with the provisions of law. For the above said reasons, it is clear that the application moved under Section 34 was not moved bonafide. It was neither supported by any affidavit nor facts were given. In the pending suit repeatedly dates were taken for filing the written statement which were steps towards filing of the written statement etc. etc. The application under section 34 was likely to be rejected. 11. For the reasons mentioned above, the misc. appeal is accepted and the order dated 5.8.1992 passed by the trial court is set aside. The case is remanded back to the trial court to proceed with the suit in accordance with the law. The parties are directed to appear before the trial court on March 18, 1998 and the record be sent to the trial court. The trial court shall proceed with the case in accordance with law for its expedious disposal. The respondent shall bear a cost of Rs. 1,000/- in this case.Appeal allowed with costs. *******