MATA VAISHNO DEVI SHRINE BOARD Vs. VIMAL KUMAR

JUDGEMENT

(1.) Appellants have filed this appeal under S. 39 of the Arbitration Act to call in question the order of the trial Court dated 18-4-1996 passed in Arbitration File No. 21/95, directing the nominated authority in the arbitration clause to nominate an arbitrator other than the appellants herein within a period of one month to arbitrate the dispute between the parties.

(2.) Parties are involved in a dispute in respect of the alleged default committed by the respondent in payment of the licence fee of the shop belonging to the appellant-Board. Respondent accordingly seems to have filed an application under S. 20 of the Arbitration Act which was opposed by the appellants and the trial Court eventually passed impugned order dated 18-4-1996 asking the nominated authority (Chairman of the Shrine Board) to appoint an arbitrator other than the appellants (respondents therein). Appellants are aggrieved of this condition contained in the impugned order as according to them the trialCourt had transgressed its jurisdiction and contravened the provisions of the arbitration agreement by requiring the nominated authority not to appoint respondents in Arbitration File No. 21/95 (appellants herein) as arbitrator. It is submitted by Mr. Kohli, learned counsel for the appellants that the condition imposed tantamounts to "refusing to a file an arbitration agreement" within the meaning of S. 39 of the Arbitration Act which provides for appealable orders. He has sought support from AIR 1990 Bom 45, AIR 1978 Punj 321, AIR 1981 Mad 121, AIR 1968 Cal 333 and AIR 1965 Cal 404.

(3.) The appeal throws up two issues for consideration and determination, viz. :i) whether the condition imposed in the impugned order directing the nominated authority to appoint an arbitrator other than the appellants herein, who were admittedly party-respondents in Arbitration File No. 21/95, amounts to refusal to file an arbitration agreement on which this appeal could maintain? and ii) whether the order impugned suffers from any other illegality on account of alleged violation of the arbitration agreement or otherwise?The answer to the first question would determine the maintainability of this appeal and to the other would decide its fate on merits.