AGRA DEVELOPMENT AUTHORITY AGRA Vs. SHEIKHEIN INTERNATIONAL

JUDGEMENT

(1.) AMITAVA Lala, J. These are the appeals under Section 39 of the Arbitration Act, 1940 (hereinafter referred to as the 'act, 1940') arising out of the order's passed by the learned IInd Additional Civil Judge (Junior Division), Agra on 19th February, 1996 in Arbitration Petition Nos. 499 and 500 of 1995, M/s. Sheikhein International v. Agra Development Authority, Agra & Ors. Since both the appeals are similarly placed and connected with each other, the same are heard analogously and decided by this solitary judgment.

(2.) THE sole issue in the aforesaid appeals is that without giving adequate opportunity to the appellants the learned Judge appointed an arbitrator, thereby the orders impugned passed by the learned Court below are wholly without jurisdiction and are liable to be set aside. In this context the appellant relied upon the Clause-30 of the Contract, which provided an arbitration clause as follows: " (30) In case any dispute or difference shall arise between the Agra Development Authority and the contractor either during the progress of the work or after its completion or after the determination, breach of the contract concerning the work or execution thereof or as to the constructions or meaning of abondoment or these presents of the tender, drawings specifications or instructions herein before referred to or as to any other matter or things arising out of or connected with or incidental to the contract or the work to be executed or payments to be made in pursuance thereof then either party shall forthwith give to the other notice in writing of such dispute or difference and such dispute or difference shall be referred to an Arbitrator to be mutually agreed upon by the contractor and the Agra Development Authority. Upon every reference the cost shall be in the discretion of the Arbitrator. In the event of the parties not agreeing in the selection of an Arbitrator the Vice-Chairman of Agra Development Authority shall be asked to appoint a sole Arbitrator. THE award of such arbitrator shall be final and binding in both parties. "

(3.) THE order, which has been passed by the Court below, is under Section 20 of the Act, 1940. Such Section 20 speaks about the application to file arbitration agreement in the appropriate Court. Section 20 (4) of the Act, 1940 is significant in respect of the dispute herein, which is as follows: " (4) Where no sufficient cause is shown, the Court shall order the agreement to be filed, and shall make an order of reference to the arbitrator appointed by the parties, whether in the agreement or otherwise, or, where the parties cannot agree upon an arbitrator, to an arbitrator appointed by the Courts. "