Ganguly, J. - (1.) The subject matter of challenge in this appeal is the judgment and order dated 29.04.2003 passed by the High Court of Judicature at Allahabad in F.A.F.O. No. 40 of 1993, 2003 All LJ 2595) in a matter arising from the order dated 1.12.1992 of the learned Senior Civil Judge, making the Award a Rule of the Court, and whereby the High Court had partly allowed the Appeal filed by the respondent.
(2.) The appellant, a private limited company, is carrying on, inter alia, various construction works for both the State and Central Government and their undertakings. The appellant's case is that an agreement dated 03.11.1981 was entered between the appellant and the North Eastern Railway for the construction of bridge island Nos. 13 and 14 over the Kosi river. There were certain special conditions of the contract (hereinafter, SCC) and they stipulate that the General Conditions of Contract (hereinafter, GCC) and standard specifications of the North Eastern Railways shall form part of the aforesaid contract. In terms of the contract, the construction was to be completed by 15.02.1982. Certain payments were made to the appellant after completion of the contract but they were received by them "under protest". Thus, disputes cropped-up between the parties. The appellant is said to have served a notice dated 16.11.1983 for the appointment of an arbitrator to settle the disputes. The General Manager of the respondent-Railways by an order dated 24.03.1986 rejected the appellant's prayer for appointment of an arbitrator on the ground that the disputes were not arbitrable, as they fell under 'excepted matter' in the contract.
(3.) On or about 18.08.1987, the appellant filed an application under Section 20 of the Arbitration Act, 1940 (hereinafter, the Act) before the Court of Addl. Civil Judge, Gorakhpur for appointment of an arbitrator which was transferred on 21st February, 1990, to the Court of Judge of Small Causes/Additional Civil Judge (hereinafter, the Court below). The Court below passed an order on 2.3.1990 that 'file received, put up on the date fixed'. Then by an order dated 31.05.1991 the learned Civil Judge appointed one Mr. B.N. Shukla, the Sole Arbitrator, to adjudicate the disputes arising out of the agreement dated 03.11.1981. Against the order of appointment of arbitrator the responder approached the High Court by filing F.A.F.O. No. 534 of 1991 (the earlier F.A.F.O.), but the same was dismissed vide order dated 27.08.1991.;