JAHARLAL KANU Vs. DR. KRISHNENDU MUKHERJEE AND ORS.

JUDGEMENT

(1.) Being aggrieved by the order No. 10 dated 02.09.2011, the petitioner preferred this revisional application on the ground that although the alleged agreement dated 23.11.2007 mentioned disputes are to be resolved under Arbitration Act, 1940 but the proceeding that has been initiated by the opposite parties before the learned Court below is under the provision of 1996 Act.

(2.) This appears to be the only ground taken in the five-paragraph petition filed on 25.08.2011. It appears from the order that apart from the aforesaid ground there was other grounds with regard to the admissibility of the said agreement.

(3.) The learned Court below considered the paragraphs 20 and 21 of the said agreement and has come to the conclusion that the said application is maintainable. It appears that while clause 20 of the said agreement refers to Arbitration Act, 1940, in the same agreement clause 21 refers to a proceeding that may be initiated for the self-same dispute may be in a restricted manner before the Civil Judge. The carriage of proceeding is with the plaintiff. He has exercised option in favour of arbitration which is now to be governed under the provision of 1996 Act. Moreover, having regard to Section 85 of the Arbitration and Conciliation Act, 1996, the Arbitration Act, 1940 stands repealed. It is an admitted position that reference was not made under the provision of the old Act of 1940 since agreement itself is of 2007 and subsequent thereto the proceeding has been initiated under the provision of the Arbitration and Conciliation Act, 1996.