- (1.) THIS appeal has been filed by the appellant against the judgment and order dated 6-7-1989 passed by Sri Virendra Singh, Civil Judge, Nainital dismissing the Civil Suit No. 116 of 1986 filed under Section 20 of the Ar bitration Act, 1940 (hereinafter will be referred to as the Act)
(2.) THE application was moved by the appellant under Section 20 of the Arbitration Act before the Civil Judge, Nainital to appoint the Arbitrator and along with the application the agree ment was also filed. THE agreement Clause between the parties reads as under: "agreement that Arbitrators be ap pointed by the third party. THE par ties to an Arbitration Agreement or ' Arbitrators to be appointed by a person designated in the agreement either by name, oras the holder for the time being of any o//ice or ap pointment. " In terms of the aforesaid clause, some dispute as specified in Annexure-A and Annexure-B was re ferred to sole arbitrator and Director, National Sugar Institute, Kanpur was the sole arbitrator. Both the parties have submitted their claim before the sole Arbitrator to Director, National Sugar Institute, Kanpur along with their comments in July 1980. The sole Arbitrator Director, National Sugar Institute, Kanpur en tered upon the reference and the Ar bitration proceedings continues. It has been stated by the appellant that on account of attitude adopted by the re spondent, the Sole Arbitrator commu nicated to the appellant his unwilling ness to continue with the Arbitration and the Director, National Sugar In stitute, Kanpur stopped the function ing as Arbitrator in the midst of the proceedings.
(3.) AFTER the refusal to act as Ar bitrator, the Director, National Sugar Institute, Kanpur filed a suit No. 116 of 1986 which has been rejected on the ground that the appellant ought to have moved an application under Sec tion 8 (1) (b) as references has already been made and dismissed the suit under Section 20 of the Arbitration Act. Learned counsel for the appel lant submits that the appellant has the choice either to move an applica tion under Section 8 (l) ( (b) or to move the application under Section 20 of the Arbitration Act and he elected to file an application under Section 20 of the Act. The argument of the learned counsel for the appellant is devoid of merits. A bare reading of Section 20 of the Act spells out that under Sec tion 20 of the Act, the application is to be filed for making the reference (as per U. P. amendment) and that said application shall be registered as suit and the applicant shall be treated as plaintiff and the respondent shall be treated as defendant and notices shall be issued inviting the objection. After the receipt of the objection, the court shall proceed to decide the suit and the suit is decreed by making the reference by appointment of the Arbi trator under Section 20 of the Act.;