NIRANJAN SWAIN Vs. STATE OF ORISSA AND ORS.

JUDGEMENT

(1.) THIS revision is directed against the holding of the learned Subordinate Judge, Bhubaneswar, that the application for removal of the arbitrator was not entertainable by him, as the appointment was, made by the Supreme Court.

(2.) THE Petitioner had entered into agreement Nos. F -2 of 1971 -72 for execution of the work, "Renovation of Madansila M.I.P." Disputes and differences between the parties having arisen, the Petitioner called upon the Chief Engineer, Irrigation, to appoint an arbitrator in terms of the arbitration clause. The Chief Engineer having failed to appoint, an application was filed under Section 8(2) of the Indian Arbitration Act, 1940 ('Act' hereafter) for appointment of an arbitrator and the learned Subordinate Judge in Misc. Case No. 378 of 1979 appointed Shri B.S. Patnaik, a retired District Judge, as the sole arbitrator. Some time later, opposite party No. 2 filed an application under Section 33 of the Act challenging the existence of arbitration agreement and the validity of the arbitration proceeding. The application having been rejected by the learned Subordinate Judge in Misc. Case No. 480 of 1980, the matter was brought to this Court in Civil Revision No. 178 of 1981 and this Court dismissed the revision. Civil Appeal No. 564 of 1981 was carried to the Supreme Court. Their Lordships in the said matter appointed the Arbitration Tribunal set up by the State Government in place of Shri B.S. Patnaik to act as the arbitrator. The arbitration proceeding thereafter commenced before the Arbitration Tribunal.

(3.) MR . Misra, the learned Counsel for the Petitioner, submitted that the learned Subordinate Judge misconceived the rule laid down in Guru Nanak's case : A.I.R. 1981 S.C. 2075, and in any view of the matter, the ratio of the said case had no application to the facts of the present case. He urged that unlike in Guru Nanak's case : A.I.R. 1981 S.C. 2075 the Supreme Court itself did not make a reference nor did it retain control over the present matter nor give any direction to the arbitrator from time to time.