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Chief Engineer (Madhya Ganga) & Others v. M/S.Jain Construction Co. Engineers - FIRST APPEAL FROM ORDER No. 1636 of 2000 [2001] RD-AH 18 (10 April 2001)


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F.A.F.O.No.1636 of 2000

10 April, 2001

Hon'ble Mr. Justice Binod Kumar Roy

Hon'ble Mr. Justice D.R. Chaudhary

In this Appeal, preferred under Section 39 of the Indian Arbitration Act, the appellants assail validity of an order allowing the Respondent's Application filed under Section 20 of the Indian Arbitration Act, 1940 and directing the parties to disclose the name of a person to be appointed as an Arbitrator within 30 days.

Sri P.K. Jain, learned counsel for the Respondent, contends with reference to a Division Bench decision of our own High Court in Corporation of India V. Karnail Singh 1987 (1) AWC 10 that an Appeal under Section 39(iv) of the Act aforementioned can be filed only after the Court has determined the name of the Arbitrator to whom the reference is to be actually made and not earlier.

Mr. K.S. Kushwaha, learned Standing Counsel appearing in support of this Appeal, contends with reference to an earlier Division Bench decision of our own High Court in Union of India V. Mohamad Usman AIR 1965 Allahabad 269 (Paragraphs 8 & 9) laying down to the effect that when the plaintiff's application under Section 20 of the Arbitration Act is allowed, then such an order is clearly an order directing filing of an arbitration agreement and, thus, it is covered under Section 39(1)(iv) of the Act and as such the Appeal is competent.

In our view in order to resolve the controversy emerging out of two decisions of our own High Court, we consider appropriate that the following question be authoritatively answered by a Bench consisting of three Hon'ble Judges:-

"Whether in the facts and circumstances of the instant case this Appeal is maintainable ?"

Let the records be placed before Hon'ble The Chief Justice for doing the needful.

Having heard learned counsel for the parties and appreciated that prima facie there was no Arbitration Clause, we in the interest of justice stay further proceedings pending before the Arbitrator.



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