SATYAWAN PRASAD Vs. KUNJ BEHARI LAL

JUDGEMENT

(1.) THIS appeal is by the sole surviving defendant under Section 39(1) of the Arbitration Act. 1940, against an order dated the 14th May, 1954 of the Additional Subordinate Judge, first Court, Patna, superseding the reference to arbitration.

(2.) THE material facts are these: THE respondent filed Money Suit No, 249 of 1951 against the appellant and Babu Banwari Lal, since deceased, in the Court of the Additional Subordinate Judge, first Court, Patna. THE claim was laid at Rs. 6411-15-3. On the 17th February, 1954, the parties applied for sending the records of the suit to Shri Rameshwar Missir for arbitration. In the petition, Shri Rameshwar Missir and Shri Kalyan Singh were named as arbitrators to decide the issues involved in the suit. THE said arbitrators were also empowered to select another arbitrator of their own choice. Shri Rameshwar Missir was named as the Chief Arbitrator. THEre was no provision made in the application for filling vacancies. THE arbitration was to the above-mentioned named persons. On the 26th April, 1954, Shri Kalyan Singh filed an application, resigning his office of arbitrator on the ground that he had no time. On the same date, Revati Mohan Das, the Sar Panch selected by the two arbitrators, also filed an application of resignation on the ground that he was too old and infirm. On the 7th May, 1954, the defendants applied before the learned Subordinate Judge, praying that Baldeo Choudhary and Balmakund Singh be appointed arbitrators in places of the outgoing arbitrators. THE defendants also disclosed in that petition that notice of this had been sent to the plaintiff on the 6th May 1954, asking him to concur. On the 7th May 1954, the plaintiff filed a rejoinder, alleging the following on amongst others:--

(3.) THE learned advocate for the appellant has conceded that the matter is entirely discretionary and, in a proper case, the Court has a discretion to supersede the arbitration. THE proviso to Section 25 of the Arbitration Act, 1940, which is admittedly applicable to the present case, runs as follows: