NIRANJAN SWAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS revision is directed against the holding of the learned subordinate Judge, Bhubaneswar, that the application for removal of the arbitrator was not entertainable by him, as the appointment was made by the Supreme Court.

(2.) THE petitioner had entered into agreement No. 18 F-2 of 1971-72 for execution of the work. "Renovation of Madansila M.I.P." Disputes and differences between the parties having arisen, the petitioner called upon the Chief Engineer. Irrigation, to appoint an arbitrator in terms of the arbitration clause. THE Chief Engineer having failed to appoint, an application was filed under Section 8 (2) of the Arbitration Act, 1940 ('Act' hereafter) for appointment of an arbitrator and the learned subordinate Judge in Misc. Case No. 378 of 1979 appointed Shri B.S. Patnaik, a retired District Judge, as the sole arbitrator. Some time later, opposite party No. 2 filed an application under Section 33 of the Act challenging the existence of arbitration agreement and the validity of the arbitration proceeding. THE application having been rejected by the learned subordinate Judge in Misc. Case No. 480 of 1980, the matter was brought to this Court in Civil Revision No. 178 of 1981 and this Court dismissed the revision. Civil Appeal No. 564 of 1981 was carried to the Supreme Court. THEir Lordships in the said matter appointed the Arbitration Tribunal set up by the State Government in place of Shri B.S. Patnaik to act as the arbitrator. THE arbitration proceeding thereafter commenced before the Arbitration Tribunal.

(3.) THE question is no longer res integra. THE provisions have already been construed and interpreted, In the case of Kumbha Mawji v. Dominion of India, AIR 1953 SC 313, before a three-Judge Bench of the Supreme Court the question as to which was the appropriate Court according to Subsection (4) of Section 31 was mooted. THE question was : whether Sub-section (4) of Section 31 applied only where the first application under the Act was made during the course of pendency of a reference to arbitration or also to a case like the present one where such first application is made after the completion of the arbitration and on the making of an award.