JAGDISH SINGH KHEHAR,CJI. - (1.) The question, that arises for consideration, truly emerges from two orders passed by the High Court at Calcutta (hereinafter referred to as the "High Court"), dated 24.5.2002, and 26.9.2002. The order dated 24.5.2002 is reproduced below : "THE COURT : The Learned Counsel appearing for the respondent submitted that the State of West Bengal may be granted liberty to prefer counterclaim, if any, before the Learned Arbitrator. Mr. Dutta, the Learned Counsel appearing for the petitioner very fairly submitted that it will always be open to the respondent to prefer its counterclaim, if any, before the Learned Arbitrator and there cannot be any possible objection to this from his client. Accordingly, there is no reason why the matter should not be placed before the Hon'ble the Chief Justice for appointment of an Arbitrator. Let the matter be placed before His Lordship for nominating a fit and proper person to act as the Arbitrator as prayed for."
(2.) Likewise, the order dated 26.9.2002, is extracted below : "The Court : In exercise of power under Section 11 of the Arbitration and Conciliation Act, 1996 I appoint Justice S.S. Ganguly (Retd.) as Arbitrator to decide the disputes arising in the matter and I fix the remuneration a sum of Rs.5000/- per sitting. The Arbitrator shall give the award within four months from the date of filing of the claims and counter claims. The remuneration of the Clerk and Stenographer shall be decided by the Arbitrator in the meeting with the parties. Let a copy of the order be communicated to the Arbitrator concerned by the Registrar, O.S. All parties including the Arbitrator and Registrar, O.S. are to act on a Xeroxed Signed Copy of this dictated order on the usual undertaking."
(3.) A collective perusal of the aforesaid orders, leads to the clear and unambiguous conclusion, that Justice (Retired) S.S. Ganguly, came to be appointed as an arbitrator, by the High Court, in exercise of its powers under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Arbitration Act"). Additionally, it emerges, from the above orders, that learned counsel appearing for the State of West Bengal sought liberty from the High Court, to raise a counter-claim, before the arbitrator. In furtherance of the said prayer, learned counsel for the respondent-Sarkar & Sarkar accepted before the High Court, that it would be open to the State of West Bengal to prefer a counter-claim.;