PRESIDENT OF INDIA Vs. MAYA PRAKESH GOEL

JUDGEMENT

(1.) This revision is directed against the order dated 28.3.1990 of learned District Judge, Sikkim allowing the application of the respondent Shri Maya Prakash Goel, moved under Sec. 8 of the Arbitration Act, 1940 for appointment of an arbitrator in pursuance of the Arbitration clause contained in the contract entered into between the parties, the contract being No. GE/867(P)/41 of 8-4-85. The relevant portion of the agreement states :

(2.) The application was resisted before the Trial Court on two grounds. One was that the petitioner, the contractor, received and signed the final bill without protect and after the contract work was completed, it lost its force along with the arbitration clause. This contention was negatived by the Learned Trial Court, holding that the application is maintainable and the question whether the claim succeeds or not is arbitrable. No arguments were advanced on this point before this court. The other ground taken before the Learned Trial Court was that since, according to the Arbitration Clause, the matter in dispute was to be referred to a named arbitrator, the application under Sec. 8 was not maintainable. The learned Trial Court held that the requirements of Sec. 8 were fulfilled. In the result, the learned Trial Court directed the Chief Engineer, Siliguri Zone, to appoint an Engineer Officer as the Sole Arbitrator within one month from the receipt of the order for deciding the disputes and differences between the parties in respect of the contract agreement in question as raised by the present respondent in his petition, which were specified in the impugned order. The parties were further directed to submit their cases before the arbitrator and file necessary documents in support of their respective cases before him.

(3.) Shri Anup Deb, Senior Advocate, the learned Counsel appearing on behalf of the petitioners, has urged that the applicability of Sec. 8(l)(a) of the Arbitration Act is confined to cases where the arbitration agreement provides that the reference shall be to one or more arbitrators to be appointed by consent of the parties, and all the parties do not, after differences have arisen concur in the appointment, and since in the present case, both the parties were not to consent for the appointment and the appointment was to be made by the Chief Engineer without the concurrence of the contractor, Sec. 8(1)(a) did not have any application. On the other hand, Shri A. Moulik, learned Counsel appearing on behalf of the respondent, has contended that the arbitration clause, the contractor should be deemed to have consented for the arbitrator who was to be appointed by the Chief Engineer and, therefore, the arbitration clause meant that the arbitrator was to be appointed with the consent of the parties and so Sec. 8(1)(a) is applicable.