- (1.) Interpretation of certain provisions of the Arbitration Act, 1940 and the Arbitration and Conciliation Act, 1996 (for short '1940 Act' and '1996 Act' respectively) is in question in these appeals which arise out of a judgment and order dated 13-10-1998 passed by a learned single judge of the Delhi High Court in O.M.P. No. 94 of 1998 and a judgment dated 17-2-2003 passed by a five-judge Bench of the said Court in L.P.A. No. 492 of 2002 holding that the said appeal was not maintainable.
(2.) The parties hereto entered into an agreement on or about 7-4-1992 in terms whereof the first respondent herein was to manufacture and pack in its factory a wide range of ice cream for and on behalf of the appellant. The said agreement was to remain valid for a period of five years. Admittedly, the said contract contained an arbitration agreement being clause 20 thereof which is as under : "In case of any dispute or any difference arising at any time between the Company and the Manufacturer as to the construction, meaning or effect of this agreement or any clause or thing contained therein or the rights and liabilities of the company or the Manufacturer hereunder in relation to the premises, shall be referred to a single arbitrator, in case the parties can agree upon one, and failing such Agreement, to two arbitrators one to be appointed by either party and in case of disagreement between the two arbitrators aforesaid and in so far as and to the extent that they disagree to, an umpire to be appointed by the said two arbitrators before they enter upon the reference. All such arbitration proceedings shall be in accordance with and subject to the provisions of the Arbitrator Act, 1940, or any statutory modification or re-enactment."
(3.) The contention of the appellant was that the first respondent herein did not fulfil its contractual obligations. It was also contended and two Demand Drafts sent by it for a sum of Rs. Five lakhs each which were required to be sent in the year 1992 were in fact sent on 7-5-1995 and the same were returned. The contention of the first respondent, on the other hand, was that in terms of the agreement between the parties that an additional plant as per the specifications thereof for manufacture of ice cream was installed, but despite the same the appellant failed to supply the base materials for packing ice cream. ;