IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA OSA No.16 of 1998 Date of Decision: February 25,2009 ___________________________________________________________ H.P Krishi Vishvavidyalya … Appellant versus. M/S Seemax Construction Pvt. Ltc. …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for reporting? No. For the Appellant Sh. J.S. Bhogal,Sr. Advocate with Mr.Sumeet Goel,Advocate For the Respondent Sh.G.D.Verma,Sr. Advocate with Mr. B.C.Verma,Advocate. Per Deepak Gupta, J This original side appeal is directed against the order dated 17.9.1997 passed in OMP No.261/97. Shri G.D.Verma learned Senior counsel appearing on behalf of the respondent has raised a preliminary objection to the maintainability of the appeal. The brief facts necessary for decision of the case are that a contract was entered into between the parties whereby the appellant – University had entered into an agreement under which the respondent-contractor was to construct a collage building for Veterinary and Animal Science Department at University campus, Palampur. Disputes arose between the parties and in terms of the arbitration clause, forming part of the agreement, the same were referred for resolution by an arbitrator. The arbitrator made an award in favour of the contractor and filed the award in Court for making the same rule of the Court in accordance with the provisions of the Arbitration Act,1940. The university thereafter filed objections under Sections 30 and 33 of the Arbitration Act,1940 for setting aside the award and remitting the same to the arbitrator for making a fresh award. These objections were rejected by a learned Single Judge of this Court and the award was made a rule of the Court vide judgment dated June 6th,1997. The appellant-university, therefore, filed an appeal before a Division Bench of the Court being OSA 8 of 1977. One of the objections raised was that Shri S.S. Juneja should not have continued as an arbitrator. This contention was rejected by the learned Division Bench. Before the Division Bench it was also urged that an application had been filed before the learned Single Judge to the effect that the arbitrator had exceeded his jurisdiction in dealing with certain matters which were covered by clauses 2,3 and 10 –C of the Agreement. The university alleged that these matters could not have been decided by the arbitrator and were beyond the scope of the arbitration agreement. It was contended before the learned Division Bench that though these matters were argued before the learned Single Judge the same were not decided by him. The learned Division Bench while dismissing the appeal further held that it was not going into the matters which were the subject matter of the application filed before the learned Single Judge. Liberty was given to the aggrieved party to take appropriate action in accordance with law after the learned Single Judge decided the application. This application was decided by the learned single Judge vide the impugned order. He rejected the prayer of the university. OMP No. 261/97 filed by the appellant university was rejected by the learned Single Judge who held that he had taken notice of all the arguments raised and judgments cited before him. Thereafter, the appellant filed the present appeal. The prayer clause of the appeal reads as follows:- “….. That this appeal may be accepted, the judgment and order of the learned Single Judge passed on 17.9.1997 in OMP No. 261 of 1997 in Civil Suit 99 of 1996 may be set aside and the award of the arbitrator dated 30.9.1994 may be set aside and the appellant may also be awarded its costs and such other and further relief as may be considered just and proper in the facts and circumstances of the case and justice be done to parties.” Though in the aforesaid prayer clause the appellant has made a prayer that the award of the arbitrator dated 30.9.1994 be set aside, there is no prayer that the judgment of the learned Single Judge dated June 6th, 1997 be set aside. Till date the appellant- university has not cared to challenge the judgment of the learned Single Judge dismissing the objections filed by it. The order dated 17.9.1997 is not an appealable order . All that has been done by this order is to reject the prayer of the applicant that the arguments raised by it and the case law cited by it may be noted in the order. This order is not an appealable order in terms of section 39 and 41 of the Arbitration Act,1940. The proper course for the appellant-university would have been to have challenge the original judgment dated June 6th, 1997 which it has not done. This judgement has attained finality. Therefore, the present appeal is not maintainable. In view of the above discussion, it is held that the appeal filed by the appellant university is totally misconceived and is accordingly rejected with no orders as to costs. ( Deepak Gupta ), J. February 25,2009. (V.K.Ahuja),J. Rita