A learned single Judge of the Patna High Court dismissed the revision petition, by the impugned order dated 25.5.2008.
Therefore, the order dated 6.4.1997 appointing the arbitrators was made by Patna High Court, number in an application under the Act, but in a revision petition under section 115 of the Code.
Let a companyy of this order be sent to both Shri Hari Lal Agarwal at his address Nageshwar Colony, Boring Road, Patna 1 and Shri Uday Sinha at his Patna address 308 Patliputra Colony, Patna.
The learned Munsif by order dated 3.8.1995 allowed the appellants application under section 34 of the Act and stayed further proceedings in the suit.
If the proceedings in which the order dated 6.5.1997 was made by the Patna High Court did number relate to an application under the Act in a reference, number is it a revision arising from an application under the Act in a reference, it is number possible to hold that the first application under the Act in a reference was made before the Patna High Court.
All that the High Court did was to record the submission that both parties had appointed their respective arbitrators and therefore the disputes stood referred to them.
Further the said revision did number arise out of arbitration proceedings, but against the rejection of an application under section 34 of the Act to stay the proceedings in a civil suit.
Let all necessary documents be filed before the Arbitrators within four weeks thereafter.
On 25.10.2005 the appellants petition under sections 30 and 33 of the Act was disposed of by Delhi High Court on the ground that the award had been filed before the learned Sub Judge, Gaya, prior to filing of the petition by the appellant under sections 30 33 of the Act and since the matter was pending in the Gaya companyrt and the appellant had challenged the jurisdiction of that companyrt, the Gaya companyrt would decide whether it had jurisdiction and if it came to the companyclusion that it had numberjurisdiction, that companyrt companyld forward the record to Delhi High Court, in which event the appellant companyld seek revival of the petition under sections 30 and 33 of the Act.
In this case the appellant filed an application OMP No.94/1998 in the Delhi High Court under section 33 of the Act in April 1998 praying for a clarification as to whether the arbitration proceedings between the parties would be governed by the provisions of Arbitration Act, 1940 or by the provisions of Arbitration and Conciliation Act, 1996.
As numbericed above the said order was made in a revision petition against the grant of an application under section 34 in a suit filed by the respondent.
The said clause provided that the venue of arbitration should be Delhi and companytract was subject to Delhi jurisdiction.
The said order is challenged in this appeal by special leave.
This application is disposed of.
The plaintiff has chosen Shri Uday Sinha a retired judge of this companyrt and Senior Advocate of the Supreme Court, while the defendants have chosen Shri Hari Lal Agrawal, Senior Advocate of the Supreme Court, a former judge of this companyrt and Chief Justice of Orissa High Court as Arbitrators.
A Revision Petition C.R.No.1020/1996 was filed in the Patna High Court under section 115 of the Code, aggrieved by the order dated 3.8.1995 passed in an original suit filed by the respondent.
The appellant entered appearance on 28.10.2004 and made an application under Order 7 Rule 10 of the Code read with section 31 4 of the Act companytending that only the Delhi High Court had jurisdiction to entertain the application and Gaya companyrt did number have jurisdiction.
The appellant also challenged the award by filing a petition under sections 30 and 33 of the Act before Delhi High Court on 16.10.2004.
Such an order recording the numberination of arbitrators by companysent and referring the disputes to arbitration, can be made in any suit or other proceedings, even if they do number arise under the arbitration agreement or under the Act.
The respondent companytends that even though the revision petition did number arise from an application under the Act, the order dated 6.5.1997 made therein by the Patna High Court, recorded the companysent of the parties that the disputes may be referred to arbitrators chosen by the parties, recorded the names of the arbitrators appointed by them, and referred the disputes between the parties to arbitration.
The said order was challenged by the appellant by filing a revision petition before the Patna High Court.
He numbered that the parties had earlier companysented before the Patna High Court for referring the disputes to arbitration and that Patna High Court had recorded the said agreement and referred the disputes to arbitration by order dated 6.5.1997.
The respondent filed a revision under section 115 of the Code of Civil Procedure Code for short before the Patna High Court against the order dated 3.8.1995.
The High Court disposed of the said revision petition by the following order dated 6.5.1997 Before this companyrt parties have agreed that the dispute between them may be referred, as per the agreement to Arbitrators chosen by the parties.
Thereafter the respondent made an application OMP No.217/2000 to Delhi High Court for summoning and examining one O.P.Singh as a witness in respect of the pending arbitration, to produce certain documents.
Respondent filed a suit T.S.No.40/1995 in the companyrt of learned Munsif, Gaya Bihar for an injunction to restrain the appellant from interfering with the manufacture and supply of ice cream by the respondent.
At this juncture, it is necessary to numberice the argument put forth by the respondent.
If the order dated 6.5.1997 is number an order made in an application under the Act in a reference, it follows that the question of making all subsequent applications arising out of the reference under the Act, to that companyrt does number arise.
On being served with the numberice of the said suit, the appellant filed an application under section 34 of Arbitration Act, 1940 Act for short for stay of proceedings in the suit on the ground that the companytract between the parties provided for arbitration.
According to the respondent, a companyrt can appoint an arbitrator either under section 20 or section 8 of the Act as there was numberapplication for filing the agreement under section 20 of the Act, the order dated 6.5.1997 should be deemed to have been made in an application under section 8 of the Act to the High Court.
If for example a civil suit is filed by a party against the other and there is numberarbitration agreement between them, but during the companyrse of the said suit both parties agree that the matter should be referred to a named arbitrator for arbitration and the companyrt accordingly refers it to arbitration, is number an appointment of an arbitrator under section 8 of the Act, but a companysent order referring the disputes to the arbitrators already appointed by the parties.
The respondent filed a suit under section 14 2 of the Act in the companyrt of Sub Judge, Gaya on 28.8.2004 praying that the award be made a rule of the companyrt.
When respondent also appointed its arbitrator, the two arbitrators appointed an umpire.
The order dated 3.8.1995 was made allowing an application filed by respondent for stay of proceedings under section 34 of the Act.
The arbitral tribunal made an award dated 17.8.2004 in favour of the respondent.
V. RAVEENDRAN,J. Leave granted.
Under an agreement dated 7.4.1992, respondent agreed to manufacture and pack appellants product ice cream as per the specifications and standards of the appellant.
Clause 20 of the said agreement provided for settlement of disputes by arbitration.
