SATYA NARAYAN AGARWALL Vs. BAIDYANATH MANDAL

JUDGEMENT

(1.) THESE two miscellaneous appeals under Section 39 of the Arbitration Act, 1940 (hereinafter referred to as the Act) have been filed by Satya Narayan Agarwalla, being aggrieved with the order of the Subordinate Judge II, Dhanbad, dated the 8th December, 1969, passed in Miscellaneous Cases Nos. 55 and 113 of 1969, whereby the learned Subordinate Judge, in Miscellaneous Case No. 55, set aside the appointment of M.L. Rathor (respondent No. 7 in M.A. 48) as the sole arbitrator, made by the appellant, and dismissed Miscellaneous Case No. 113, which was filed by the appellant, for making the award given by M. L. Rathor as the decree of the Court.

(2.) MISCELLANEOUS Appeal No. 48 arises out of Misc. Case No. 55 which was filed by the respondents challenging the appointment of Rathor as the sole arbitrator at the instance of the appellant, whereas MISCELLANEOUS Appeal No. 49 arises out of MISCELLANEOUS Case No. 113 which was filed by the appellant for making the award given by Rathor as the decree of the Court. Both the miscellaneous cases were heard together by the Court below who, after examining the evidence on record and hearing the parties, came to the conclusion referred to above. The two miscellaneous appeals have also been heard together in this Court and they will be governed by this common judgment.

(3.) ON the various contentions advanced by the learned counsel of the parties three main questions arise for consideration in both the appeals taken together; namely, (i) whether the appointment of Rathor as a sole arbitrator was valid; (ii) whether the award given by him ought to have been made a decree of the court; and (iii) whether in the circumstances of the case the setting aside of the entire arbitration proceeding was justified? Answer to question No. (ii) depends upon answer to question No. (i). If Rathor's appointment was as a sole arbitrator not valid, the award given by him cannot be sustained as the very foundation of the award would vanish. In that view of the matter, it will be convenient to decide first as to whether the appointment of Rathor as the sole arbitrator was valid or not. Section 9 of the Act reads as:--