DHIRENDRANATH BISWAL Vs. RAHAS BEHARI MISHRA

JUDGEMENT

(1.) THIS revision is directed against an order dated 13. 7. 82 passed by the Sub Judge, First Court, Cuttack in Misc. Case No. 341 of 1981 directing appointment of an Arbitrator. The aforesaid Misc. Case was filed under the provisions of section 8(2) of the Arbitration Act on an application filed by the present opposite Party No. 1 who was the petitioner in the court below.

(2.) THE facts in short as revealed from the records of the case are as follows : The Opposite Party No. 2 is the Producer and Distributor of an Oriya Film 'Bandhu Mohanty''. The said O. P. No. 2 could not complete the production of the said picture due to Shortage of funds for which he had to borrow money both from the petitioner and O. P. No. 1. An agreement was executed between the parties on 9.5. 77 evidencing the terms and conditions regarding the payment of commission and repayment of the amount advanced by the aforesaid parties. The said agreement contained an Arbitration clause which runs as follows : -'That any difference which may arise between the parties out of this agreement or their representatives with regard of this agreement to the inter relation of these presents or any part thereof or as the rights of liabilities of either parties under these presents or with regard to the winding up or any other matter or thing relating to this agreement shall be referred to a single Arbitrator in conformity with the provisions of the Arbitration Act, 1940.'

(3.) EVEN though the application filed before the learned trial. court was styled as one under sections 5, 8 and 11 of the Arbitration Act, the provision of sections 5 and 11 are thoroughly inapplicable. Section 5 of the Arbitration Act provides that the authority of an appointed arbitrator or umpire shall not be revocable except with the leave of the court, unless a contrary intention is expressed in the arbitration agreement. The provision has no application whatsoever where no Arbitrator has at all been appointed, either in the Arbitration agreement itself or by the order of the court. So also section 11 does not come into operation which deals with the power of the court to remove an Arbitrator under certain circumstances, cannot be made applicable to the facts of the present case. Thus, the only question that remains to be decided is whether section 8 of the Arbitration Act is applicable in this case. The Arbitration clause quoted above says that if any difference arises between the parties relating to the agreement etc. it shall be referred to a single Arbitrator in conformity with the provisions of the Arbitration Act, 1940. It does not say that the Arbitrator shall be appointed by the consent of the par. ties. Section 8 of the Arbitration Act runs as follows : '8, power of Court to appoint arbitrator or umpire -