Ajoy Nath Ray, S.N.Bhattacharjee, J. - (1.) The Hon'ble Judge in the Court below, by his Lordship's impugned order dated 3rd July, 2001 has refused the request of the appellant to nominate an Arbitrator. His Lordship has opined that the residence of the parties and the location of the cause of action would give jurisdiction to the District Court at Suri for entertaining the appellant's petition. His Lordship has further, indicated that only thereafter the power of nomination by the Hon'ble Chief Justice of our High Court will arise under section 11 of the Arbitration and Conciliation Act, 1996.
(2.) Although we obtained assistance from learned Counsel appearing for the parties, since section 11 poses many problematic questions today, we requested Mr. Jayanta Kumar Mitra, Barrister and Senior Advocate to appear as Amicus Curiae, which he did. He rendered us invaluable assistance.
(3.) The two principal Supreme Court cases which have dealt with section 11 and the power of appointment are the two Konkan cases reported respectively at AIR 2000 Supreme Court, page 2821 and JT 2000 (Suppl. 2) SC 150. Mr. Mitter has also given us information about the Constitution Bench, now in seisin of the second Konkan matter, in Civil Appeal Nos. 5800-89/1997. He has placed before us an order of the Constitution Bench dated 25.4.2001 in which the Bench requested the Attorney General to assist the Court (as Amicus Curiae). Although Mr. Mitter indicated that an adjournment of this matter might bring the decision of the Constitution Bench on record. Mr. Dutt appearing for the appellant insisted that the appeal be disposed of in his client's financial interest. He submitted that as the Supreme Court has passed no stay orders, there is no reason why the appeal should not be disposed of. Before giving our opinion in this matter we have to summarize briefly what the Konkan cases state, as we respectfully read them.;