- (1.) This Rule is directed against an order of the learned Subordinate Judge, First Court, Alipore, allowing the opposite party's application for adducing evidence on certain points raised in para. 16 of its petition, dated November 14, 1969, after overruling- the Petitioner's objection that the Court had no jurisdiction to go into the said questions. The matter arises out of a proceeding under Sections 9(b) and 33 of the Arbitration Act. The material facts lie within a short compass and may be stated as follows:
(2.) The Petitioner (successful tenderer), as sole proprietor of the business M/s. Isis Coal Co., entered into a contract with the opposite party (Corporation) for supply of certain quantities of coal at their Chandrapura Thermal Power Station. According to the opposite party, the Petitioner failed to supply the contractual quantity of coal and committed a breach of the above contract. The opposite party thereupon repudiated the contract. In the meantime, there has been some payments made by the opposite party to the Petitioner. In view of the above breach the opposite party imposed a penalty on the Petitioner purporting to do so under the terms of the above contract and also forfeited his security deposit. Thereafter, on a representation made by the Petitioner, the opposite party remitted a large part of the above penalty and also released a portion of the security deposit. This was followed by long correspondence between the parties and eventually, according to the opposite party, all claims and differences between the parties concerned were settled and the Petitioner submitted a supplementary bill for the balance found due. The Petitioner had also been asked to endorse a receipt on the bill signifying full and final settlement of all claims. The Petitioner, however, although he submitted the bill, did not furnish the receipt as desired by the opposite party. The opposite party overlooked the above defect and made payments upon the bill. Thereafter the Petitioner demanded further amount, including damage for repudiation of the contract, from the opposite party and then a dispute arose between them which was eventually referred by the Petitioner to the arbitration of the sole arbitrator Mr. J. N. Mallick. The Petitioner purported to do this under the relevant arbitration clause contained in the above agreement between the parties, which in its relevant part runs as follows: ...if at any time any question, dispute or difference whatsoever shall arise between the Corporation and the successful tenderer upon, or in relation to, or in connection with the contract, either party may forthwith give to the- other notice in writing of the existence of such question, dispute or difference, and the same shall be referred to the adjudication of two arbitrators, one to be nominated by the Corporation and the other to be nominated by the successful tenderer...and the award of the arbitrators,...shall be final and binding on the parties and the provisions of the Indian Arbitration Act, 1940, and of the rules thereunder and any statutory modification thereof shall be deemed to apply to and be incorporated in this contract.... Thereupon the opposite party applied before the learned Subordinate Judge under Sections 9(b) and 33 of the Arbitration Act challenging the. propriety of the reference. Upon this application the present proceeding was started.
(3.) At the hearing, the opposite party desired to adduce oral evidence, touching the points, raised in para. 16 of its petition dated November 14, 1969, which reads as follows: That all claims and demands as between the Petitioner and the contractor, standing fully paid and adjusted, there was no dispute, in the absence whereof the entire proceedings in the above case do not lie and the instant case is not maintainable under the Arbitration Act being outside its fold.;