BIMAL KUMAR GHOSH Vs. SAIKAT SARKAR

JUDGEMENT

(1.) A very short but important point arises in this civil revision which has been directed against the order No. 25, dt. 16-8-82 passed by the learned Chief Judge, City Civil Court, Calcutta refusing to consider the present petitioners prayer for dismissal of the application under S.20 of the Arbitration Act being not maintainable with the observation that the question of dismissal of the suit can arise after framing of issues after filing of written statement by the defendant and after hearing the preliminary issue about maintainability of the suit at the instance of the defendant.

(2.) MR. Tarun Sankar Bose, learned Advocate appearing on behalf of the petitioners has placed before me a decision of our High Court reported in AIR 1966 Cal 259, S.P.C. Engineering Co. v. Union of India in which P.C. Mullick, J. has observed that a proceeding under S.20 of the Arbitration Act is not a suit within the meaning of Cl. 12 of the Letters Patent. He has, therefore, submitted that when in the proceeding under S.41 of the Arbitration Act, the learned Chief Judge by order No. 15 dt. 20-1-82 while disposing of the application for appointment of receiver filed at the instance of the opposite party took the view that the application under S.20 of the Arbitration Act was not maintainable, the learned Chief Judge should not have postponed consideration as to whether the application under S.20 of the Arbitration Act was maintainable or not at a future date after the present petitioners filed written statement and after the issues including the issues regarding the maintainability of the suit were framed.

(3.) I have heard the learned Advocate for the parties at length. Section 41(a) of the Arbitration Act states as follows : - "Subject to the provisions of the Act and of rules made thereunder- (a) the provisions of the Civil P.C., 1908 shall apply to all proceedings before the Court and to all appeals, under this Act". It is to be noted that the operative part of S.41(a) is preferred (Prefaced ?) by the words "Subject to the provisions of this Act, and of rules made thereunder". So it is clear that the Civil Procedure Code is applicable subject to the provisions of the Arbitration Act.