Case: State Of West Bengal Vs. Gourangalal Chatterjee

2. Facts are not in dispute. Since the State did not appoint any Arbitrator as provided for in Clause 25 of the agreement despite letters by the respondent to the Chief Engineer, Public Works Department (P.W.D.) and the Secretary P.W.D. the respondent approached the High Court and a Learned Single Judge by order dated 6th September, 1991 revoked the authority of the Chief Engineer to act as an arbitrator and directed one Shri D.K. Roy Chowdhury to act as the sole arbitrator as suggested by the respondent. Against this order the State filed an appeal which has been dismissed by the Division Bench upholding the objection of the respondent as not maintainable. It has been held that the appeal was not maintainable either under Section 39(2) or under Letters Patent. It is the correctness of this view that has been assailed in this appeal.

Reasoning: The argument appears to be with- out any substance as Sub-section (1) of Section 39 which is extractedAn appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order:An order—(i) superseding an arbitration;(ii) on an award stated in the form of a special case;(iii) modifying or correcting an award;(iv) filing or refusing to file an arbitration agreement;(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;(vi) setting aside or refusing to set aside an award Provided that the provisions of this section? shall not apply to any order passed by a Small Cause Court.(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supremeprovides that an appeal could lie only from the orders mentioned in the sub- section itself. Since the order passed by Learned Single Judge revoking the authority of the Chief Engineer on his failure to act as an arbitrator was not covered in either of the six clauses mentioned in Section 39 it is obvious that no appeal could be filed against the order of the Learned Single Judge.Reliance was placed on certain orders passed by this Court and it was urged that settlement of dispute under Clause 25 of the agreement being in exclusive domain of the Chief Engineer the High Courtnot empowered to appoint anyone else. The submission is devoid of any merit. It is not made out from the agreement. Rather clause 25 itself permits appointment of another arbitrator if the Chief Engineer fails or omits to act as such. Relevent portion of the agreement extractedthe Chief Engineer be for any reason unwilling or unable to act as such Arbitrator such questions and disputes shall be referred to an Arbitrator to be appointed by the Arbitrator shall be final, conclusive and binding on all the parties to thisone of the decisions given by this Court the order of the High Court was set aside as the dispute being technical in nature the appointment of a non-technical arbitrator was not justified. Here in this the High Court has appointed a retired Chief Engineer and not a non-technical man. No allegation has been made against him. Therefore, the order of the learned Single Judge also does not suffer from any infirmity.