BIHAR STATE ELECTRICITY BOARD Vs. APAR LIMITED

JUDGEMENT

(1.) This civil revision is directed against order dated 14-12-95 passed by the 8th Subordinate Judge, Patna, in Misc. Case No. 6 of 1994 holding that the Court has jurisdiction to appoint Umpire under S. 8(2) of the Arbitration Act, 1940 (in short 'the Act').

(2.) The background of the case is that the petitioner filed money suit No. 226 of 1976 in the Court of the 1st Subordinate Judge, Patna, for realisation of sum of Rs. 65,49,535.42 Paise on account of damages for the alleged breach of contract in the matter of supply of power cable. The opposite party, in view of the Arbitration clause contained in the agreement, filed an application for stay of the suit under S. 34 of the Act. The subordinate Judge rejected the application. On appeal (Misc. Appeal No. 27 of 1980) this Court set aside the order and stayed the suit. The S.L.P. preferred by the petitioner was dismissed by the Supreme Court. The suit in the meantime was dismissed in default. This Court by order dated 21-5-1993 in C.R.No. 1032 of 1991 restored the suit but with a rider that it shall not be taken up till the conclusion of the Arbitration proceeding. Prior to that after the dismissal of the S.L.P. by the Supreme Court, the parties had nominated their respective Arbitrators and the arbitration commenced. In view of difference of opinion between the two Arbitrators the dispute was referred to an Umpire, a retired Judge of this Court. The Umpire, however, later resigned.

(3.) On 4-2-94 the opposite party gave written notice to the petitioner nominating another retired Judge of this Court as the Umpire, asking the petitioner to concur in the appointment. In response to the said notice, the petitioner by its letter dated 14-2-1994 nominated another person as Umpire. The opposite party informed the petitioner that in terms of the provisions of S. 8 of the Act it is open to the petitioner to concur in the appointment of the person nominated by it (opposite party), failing which the appointment is to be made by the Court, but the petitioner cannot suggest the name of another person. On 21-2-1994 the opposite party filed a petition under S. 8(2) of the Act before the subordinate Judge, Patna, which was registered as Misc. Case No. 6 of 1984. Soon after, on 8-3-94 the petitioner also filed a similar petition under S. 8(2) in money suit No. 226 of 1976 for appointment of the Umpire. The petitioner objected to the maintainability of Misc. Case No. 6 of 1994. By the impugned order, as indicated at the outset, the objection has been overruled and the petition has been held to be maintainable. Appointment of Umpire has also been made.