EXECUTIVE ENGINEER PRACHI DIVISION BHUBANESWAR Vs. GANGARAM CHHAPOLIA

JUDGEMENT

(1.) THESE two revisions are directed against the orders dated 7-3-1979 and 9-31979 passed by the Subordinate Judge, Cuttack in Misc. Case No. 386 of 1978. In pursuance of the order dated 26-4-79 passed by this Court in Civil Revision No. 238 of 1979 both the cases were heard together, one set of argument was advanced by the counsel appearing for the parties, and both these revisions accordingly are disposed of by this common judgment.

(2.) THE Executive Engineer, Prachi Division, Bhubaneswar (the petitioner) and Opposite Party No. 1 (O. p. No. 1) entered into the agreement No. 50-F/2 of 1968-69 for the 'Construction of solid spurs at Branch village Devi Bight' by O. P. No. 1. THE claims of O. P. No. 1 in connection with that work could not be settled amicably, and so O.P. No. 1 issued notice to the Chief Engineer, Irrigation, to appoint an arbitrator in accordance with Clause 23 of the agreement to arbitrate the disputes arising out of his said claims and to settle his claims in respect thereof. THE Chief Engineer nominated Sri P. N. Misra, a Superintending Engineer of the Irrigation Department, as the arbitrator for that purpose. Opposite Party No. 1 filed Misc. Case No. 386/ 78 under Sections 8 and 20 of the Arbitration Act 1940 (hereinafter referred to as the 'Act') in the court of the Subordinate Judge, Cuttack for appointment of a proper arbitrator. In that application it was urged that the Chief Engineer did not appoint any arbitrator within 15 days of the receipt of the notice; and that the appointment of the arbitrator ultimately made by the Chief Engineer was not in accordance with the arbitration Clause 23 of the F-2 agreement. THE petitioner opposed the said petition inter alia on the grounds that the Subordinate Judge had no territorial jurisdiction to entertain the said petition or to 'pass any order thereon; and that the Chief Engineer had appointed a proper arbitrator within time and so the court should not intervene in the matter. THE court below, on consideration of the facts and materials before it, arrived at the findings that (1) the Chief Engineer, Irrigation, by his letter dated 2-11-78 appointed Sri P. N. Misra as the arbitrator in this case after receiving the notice to that effect from opp. party No. 1 on 1-11-78, and therefore the appointment of the arbitrator by the Chief Engineer was within time as provided under Section 8 of the Act; and that (2) on the doctrine that the debtor may follow the creditor and the fact that the contract was executed within the territorial jurisdiction of the court below, the court had jurisdiction to entertain the said application filed by O. P. No. 1. Regarding the objection against the appointment of Sri P. N. Misra as the arbitrator in this case, the court below held that Sri Misra was an Engineer of the Irrigation Department, and Clause 23 of the F-2 agreement explicitly mentioned that the Chief Engineer would appoint only 'a Superintending Engineer of the State Public Works Department unconnected with the work at any stage'; and that being so, the appointment of Sri P. N. Misra was contrary to the terms of the arbitration Clause 23 of the F-2 agreement and so the said appointment was invalid. On the last-mentioned finding, the court below appointed Sri M.K. Dey, an Advocate of this bar, as the arbitrator in this case, as both the parties could not suggest a common name, nor could they agree to appoint any one out of the two panels of names separately submitted by the parties.