STATE OF WEST BENGAL Vs. GOURANGALAL CHATTERJEE

JUDGEMENT

(1.) The short and the only question of law that arises for consideration in this appeal is if an appeal was maintainable against an order passed by the learned Single Judge under Section 39 (1 of the Arbitration Act either under Section 39 (2 of the Act or under the Letters Patent jurisdiction

(2.) Facts are not in dispute. Since the State did not appoint any arbitrator as provided for in Clause 25 of the agreement despite letters by the respondent to the Chief Engineer, Public Works Department (PWD) and the secretary, PWD the respondent approached the High court and a learned Single Judge by order dated 6/09/1991 revoked the authority of the Chief Engineer to act as an arbitrator and directed one shri D. K. Roy Chowdhury to act as the sole arbitrator as suggested by the respondent. Against this order the State filed an appeal which has been dismissed by the division bench upholding the objection of the respondent as not maintainable. It has been held that the appeal was not maintainable either under Section 39 (2 or under Letters Patent. It is the correctness of this view that has been assailed in this appeal.

(3.) Section 39 of the Arbitration Act came up for consideration in union of India v. Mohindra Supply Co. The court after going into detail and examining various authorities given by different High courts held at no second appeal lay under Section 39 (2 against a decision given by learned Single Judge under Section 39 (1. In respect of the jurisdiction under Letters Patent the court observed that since Arbitration Act was a consolidating and amending Act relating to arbitration it must be construed without any assumption that it was not intended to alter the law relating to appeals. The court held that in view of bar created by subsection (2 of Section 39 debarring any second appeal from an order passed in appeal under Ss. (1 the 'conclusion was inevitable that it was so done with a view to restrict the right of appeal within strict limits defined by Section 39'. Therefore, so far the second part is concerned, namely, the maintainability of the appeal under Letters Patent it stands concluded by this decision.