SUNRISE INDUSTRIES Vs. SUBHADRA ENGINEERING WORKS MECHANICAL ENGINEERS IRON AND BRASS FOUNDRIES HOWRAH

JUDGEMENT

(1.) This Writ Petition has been filed to quash the Judgment dated 14-8-2001 passed by a learned single Judge of this Court in Arbitration Application No. 47 of 2001 and consequently to appoint a sole Arbitrator to resolve the dispute between the parties arising out of the contract of supply, installation and trial run of the machinery by respondent-company at the factory premises of the petitioner vide quotation reference No. SEW/275/98-99, dated 1/-2-1999.

(2.) Rule nisi was issued by this Court on 12-9-2001. When the matter was called on 18-10-2001 nobody appeared for the respondent despite service of notice: however, the case was adjourned to enable the office to verify as to whether anybody has filed vakalat for the respondent. On 30-10-2001 the matter was listed and at the request of the learned Counsel for the petitioner, it was adjourned. Again, on 1-2-2002, the case was listed and it underwent adjournment to 12-2-2002. On 12-2-2002, the matter was heard in part and it was directed to be listed after ten days to place before this Court the decision of the apex Court in Konkan Railway Corporation Ltd. v. Rani Construction (P) Ltd., which affirmed the earlier decision of the Supreme Court in Konkan Railway Corporation Limited and others v. Mehul Construction Company.

(3.) The petitioner filed A.A.No. 47 of 2001 under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter called 'the Act') seeking directions to appoint an Arbitrator to resolve the dispute between the parties arising out of the contract of supply, installation and trial run of the machinery by respondent at its factory premises, vide quotation in Reference No. SEW/275798-99, dated 1/-2-1999. A learned single Judge of this Court heard the said application and by his Order dated 14-8-2001 dismissed the same as not maintainable in this Court by observing as follows: "The learned Counsel argued accepting the conditions stipulated in the offer document the applicant entered into an agreement with the respondent and therefore, the respondent is bound by the arbitration clause. In view of the fact that there is a dispute between the parties the respondent is under legal obligation to refer the matter for arbitration. I see substance in the submission made by the learned Counsel in this regard but the question is whether the present application is maintainable in this Court. Under the scheme of Arbitration Act an application under Section 11 is required to be made to be Chief Justice or any person nominated by the Chief Justice. The expression Chief Justice itself is explained under Section ll(12)(b) in the following words: