Hegde, J. - (1.) The appellant is a company. It entered into a contract with the Union of India on November 17, 1959 for fabrication of tank Shells at Kalai Kunda. The fabricated Shells were to be rolled through the tracks allotted by the Air Force authorities. After the manufacture of shells, the appellant applied for permission to roll the Shells. The permission asked for was wanted on March 24, 1960. The appellant was asked to roll those Shells through the airfield and the rolling was to be done on Sundays and Mondays which were not flying days. In pursuance of the said permission the appellant rolled some Shens on February 28, 1962. While the Shells were being rolled, a shell hit a parked aircraft on the apron. The Air Force authorities assessed the damage caused to the plane at Rs. 51,414/-. Thereafter the appellant was called upon to pay the said amount. The appellant denied its liability to pay the amount demanded. Then the authorities threatened the appellant that they would deduct the amount in question from its bills. The appellant protested against the threatened deduction. Thereafter the Union of India referred the dispute to Col. J. S. Sandhu on August 13, 1962, negativing the contention of the appellant that the dispute in question does not fall within the scope of the agreement entered into by it with the Union of India. Soon thereafter the appellant moved the Court of Civil Judge, Lucknow under S. 5 of the Indian Arbitration Act, 1940 for revoking the reference to the arbitrator. The trial court accepted that application and ordered the revocation of the reference. The Union of India took up the matter in appeal to the High Court of Allahabad. The appellant contested the appeal on various grounds. One of the grounds taken by him was that the appeal was not maintainable. The High Court accepted that contention but converted the appeal into a revision under S. 115 of the Code of Civil Procedure. The High Court set aside the order of the trial court holding that the reference was a valid one. Thereafter this appeal was brought after obtains obtaining a certificate from the High Court.
(2.) In support of the appeal, two contentions were advanced by the learned Counsel for the appellant viz. (1) that the dispute in question does not fall within the scope of cl. (70) of the agreement and (2) that the High Court had no jurisdiction to convert the appeal into a revision under S. 115 of the Code of Civil Procedure.
(3.) The clauses in the agreement which are relevant for deciding the points arising in the appeal are Cls. 48 (c) and 70. Clause 48 (c) reads:contract and further, Contractor shall "Damage and Loss-(c) Save as provided above the Contractor shall at- his own expense reinstate and make good to the satisfaction of the G. E. or make compensation for any injury, loss or damage occasioned to and property or right whatever including property and right of Government (or agents, servants, or employees of Government) being injury, loss or damage arising out of or in any way in connection with the execution or purported execution of the contract and further, Contractor shall indemnify Government against all claims enforceable against Government (or any agent, servant or employee of Government) or which would be so enforceable against Government were Government a private person, in respect of such injury (including injury resulting in death) , loss or damage to any person whomsoever or property, including all claims which may arise under the Workmen's Compensation Act or otherwise." Clause 70 reads: "Arbitration-All disputes, between the parties to the Contract (other than those for which the decision of the C. W. E. or any other person is by the Contract-expressed to be final and conclusive) shall, after written notice by either party to the contract to the other of them be referred to the sole arbitration of an Engineer Officer to be appointed by the authority...mentioned in the tender Documents.";