AMSON TRADING Vs. KASH BEVERAGE CHHANI BIJA

JUDGEMENT

(1.) An agreement was entered into between the parties whereunder respondent had appointed the petitioner as sole agent and distributor for Kashmir Division & Ladakh for selling its products i.e., of respondent. For said purpose a sum of Rs.24,000/- was admittedly deposited by the petitioner with the respondent in terms of the agreement dated 12.4.1984. Since supplies were not made as per agreement, therefore petitioner approached this court for appointment of an arbitrator as well as for adjudicating the disputes between the parties. Order appointing arbitrator was passed by this court on 14.11.1991, whereby Shri Justice J. N. Bhat (Retd.) was appointed as sole arbitrator, who after entering upon reference in terms of the said order of the court proceeded with the matter and finally made and published his award in 31st May,1992. It was filed in court when it was directed that notice be issued to the parties regarding its filing on 29.6.1992. Shri Kotwal accepted notice on behalf of petitioner and stated he has no objection for making the award rule of the court. Case was pending for service of the respondent. Because of non-appearance of respondent, vide judgment dated 7.4.1995 award was ordered to be made rule of the court and the decree was ordered to be drawn accordingly. Respondent filed LPA( C ) No.34/97 against the aforesaid judgment and decree of the learned single judge. Division Bench on 26th February 99 set aside the said judgment and decree of learned single judge and ordered that the matter be re-posted before the learned single judge. 15th March 99 was the date given for the said purpose. Respondent thereafter preferred objections on 23.4.99 under sections 30 & 33 of the J&K Arbitration Act. Reply to these objections was filed by the petitioner. It was followed with the rejoinder on behalf of the petitioner. Matter came up before the court on 14.10.1999 when following order was passed.

(2.) In view of the aforesaid order dispute between the parties is to be decided on the touch stone of Section 33 of the Arbitration Act. As per Section 33 of J&K Arbitration Act. Respondent is entitled to challenge the existence or validity of an arbitration agreement or award or to have the effect determined by applying to court and such a question shall be decided on affidavits.

(3.) Following issue was framed by this court on 2.12.1999 :