SARKAR AND SARKAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The Court : By this appeal the appellant being unsuccessful before the learned Arbitrator has impugned the decision of the learned Arbitrator rendered under section 16 of the Arbitration and Conciliation Act, 1996 and ruled that the learned Arbitrator has no jurisdiction to adjudicate the dispute and held that there exists no arbitration agreement between the parties to decide the claim and contention of the appellant. The decision of the learned Arbitrator is quite compact and full of reasons backed by the various judicial pronouncements of the Supreme Court and this Court. Now the task of this Court is to examine whether such ruling of the learned Arbitrator under section 16 regarding the existence of the arbitration agreement factually and legally and further arbitrability of the subject matter is right or wrong in this appellate jurisdiction. We are not unmindful of our power under section 37 of the Act. Unlike under section 34 read with section 37 our jurisdiction as a first Appellate Court is not a restricted one. Therefore, it is open for us to consider all aspects of the matter meaning thereby we can examine as to whether interpretation given by the learned Arbitrator of a clause is correct or not.

(2.) Precisely factual and legal dispute before Appellate Court can be the subject matter of the scrutiny unlike the Appellate Court under section 34 of the aforesaid Act.

(3.) Before we address to the respective contention of the learned counsels we think it fit to record the factual aspect of this matter. The claimant entered into an agreement with the State Government for construction of certain civil works which are governed by the written agreement containing various terms and conditions constituting rights and obligations. It is an admitted position that an arbitration clause being clause 25 has been deleted from the agreement. What was there need not be examined nor it has been examined by the learned Arbitrator in details.