H. N. Seth, J. - (1.) THE applicant is aggrieved by a judgment of this Court dated 3rd November, 1980 in FAFO Nos. 472 of 1972 and 473 of 1972. He wishes to file an appeal under Article 133 of the Constitution before the Supreme Court. He has accordingly made this application praying for grant of a certificate to the effect that the case is fit one for appeal to the Supreme Court.
(2.) THE application for certificate is dated 1st January, 1981. Learned counsel for the opposite party has raised a preliminary objection with regard to maintainability of the application. Article 133 of the Costitution lays down that an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies under Article 134-A that the case involves a substantial question of law of general importance and that in the opinion of the High Court the said question needs to be decided by the Supreme Court Article 134-A of the Costitution provides that every High Court, passing or making a judgment, decree, final order, or sentence, referred to in Article 133 of the Constitution may, if it deems fit so to do, on its own motion, and shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in clause (1) of Article 133 may be given in respect of that case. Learned counsel for the opposite party contended that the certificate under Article 134-A can be granted only in two contingencies : (a) If the High Court on its own motion deems it fit so to do; and (b) if an oral application in that behalf is made by the aggrieved party immediately after the passing or making of such judgment, decree, final order or sentence against which an appeal is proposed to be filed. This is not a case where the High Court proposes to grant a certificate on its own motion. The second of two conditions is also not fulfilled as it merely contemplates an oral application made by or on behalf of aggrieved party immediately after the passing or making of the judgment, decree, final order or sentence. The second condition does not contemplate an application made about two months after the delivery of the judgment against which it is proposed to file an appeal. An affidavit has been filed by Sri Janardan Sahai learned counsel appearing for the applicant wherein he stated that when this Court delivered judgment in the cases on 3rd November, 1980 he prayed for a certificate as contemplated by Article 134-A (b) of the Constitution. At that time the court directed him to move a written application for the purpose. It thus appears that an oral application was made on 3rd November, 1980 and that prayer was not rejected by this Court. This Court merely wanted the applicant to put his request in writing and the application was made in pursuance of the direction made by the Court. There is thus full compliance with the provisions contained in Article 134-A (b) and some orders, on the oral request already made by the applicant, have to be made. We are accordingly of opinion that notwithstanding the fact that the written application was filed much later, the applicant is entitled to the consideration of his oral request for a certificate prayed for by him.
(3.) ONE of the questions that arose for consideration in this case was as to whether in a case covered by section 9 of the Arbitration Act wherein the parties agree to refer their dispute to two arbitrators-one to be appointed by each party and one of the parties after appointing its arbitrator gives notice to the other party to appoint its arbitrator and the party to which notice is given fails to appoint its arbitrator within fifteen days of the notice, it altogether loses its right to appoint an arbitrator after fifteen days and whether such second party can exercise its right to nominate its arbitrator beyond fifteen days but before the party giving notice had appointed its arbitrator, to act as a sole arbitrator. This question, in our opinion, is a question of law of general importance. As the question is likely to arise in a large number of cases all over the country and as no pronouncement of the Supreme Court has, in this regard, been brought to our notice, we think that this question needs to be decided by the Supreme Court. In the result, we allow this application and certify under Article 134-A of the Constitution that the case involves a substantial question of law of general importance which, in the opinion of this Court, needs to be decided by the Supreme Court. Costs easy. Application allowed.;