- (1.) The facts giving rise to this petition briefly is that the second respondent-Executive Engineer Prantiya Khand Lok Nirman Vibhag, Lalitpur entered into a contract with the applicant-firm for construction of Type-4 class building. The contract was executed on 1 March 1996. The contract contained an arbitration clause to settle dispute, if it arises, between the parties pertaining to the execution of the contract. It appears that the respondent failed to provide land to construct the building, further, did not fulfill the other conditions of the agreement, therefore, the material purchased by the applicant and advance given to the workers went waste; the applicant, therefore, incurred loss due to breach of contract. Aggrieved, applicant instituted a suit being Suit No. 218 of 1997 (M/s Rathore Builders vs. State of U.P. & another) under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act 1996) seeking a direction to the civil court to direct the Chief Engineer to appoint an Arbitrator as per the terms of the contract. The opposite party appeared and contested but no objection was taken regarding maintainability of the suit at the behest of the applicant under Section 8 of the Act 1996 before the civil court. Be that as it may, the trial court vide order dated 30 July 2002 directed the Chief Engineer Bundelkhand Region, Jhansi, to appoint an arbitrator as per the terms of the contract, further, the dispute be redressed by the arbitrator within a period of six months.
(2.) Pursuant thereof, the State Government, Law Department (Appointment) vide reference dated 22 June 2004 referred the dispute to the sole arbitrator Sri Vishnu Chand Gupta, Special Secretary (Judicial) and Law Adviser U.P., Govt. Lucknow. The sole arbitrator adjudicated the matter, rendered the award on 9 February 2005. The award was in favour of the applicant, thereafter, it appears that the award was filed in the pending suit before the Civil Judge (Sr. Div.), Lalitpur by the applicant for making it rule of the court. The opposite party objected to the award, however, the award was made rule of the court, purportedly under Section 34 of the Act 1996 by order dated 2 March 2009. Aggrieved, by the order passed under Section 34 of the Act, 1996, the State-respondent preferred an appeal before the Additional District Judge, Lalitpur being Civil Appeal No. 7 of 2009 (State of U.P. & another vs. M/s Rathore Builders). The appeal was contested by the applicant, learned Additional District Judge set aside the reference order, and the award rendered by the arbitrator, thus, declaring the reference order and award nullity being void ab initio as the reference order was without jurisdiction. The applicant is assailing the order dated 15 October 2015 passed by the appellate court/Additional District Judge, Lalitpur, under Article 227 of the Constitution.
(3.) The question for determination is (i) whether the applicant could have instituted a suit before the Civil Judge under Section 8 of the Act, 1996, seeking a direction to the competent authority to appoint an arbitrator; (ii) whether the Civil Judge was competent to have entertained the petition under Section 34 of the Act, 1996; (iii) whether an appeal under Section 37 of Act, 1996 would lie before the Additional District Judge.;