- (1.) The parties entered into an agreement on March 12, 1992 whereby the petitioner lent and advanced diverse sums of money to the respondent for smooth running of the Tea Estate. As the monies were not repaid in terms of the agreement, the petitioner initially approached the Civil Court by filing a suit as also applied for interim injunction under Order 39 of the Code of Civil Procedure.
(2.) The suit was filed by the plaintiff being the petitioner herein suppressing the arbitration clause incorporated in the agreement. The petitioner also moved the Criminal Court as against the Directors of the respondent-Company. The respondent got the criminal case stayed in view of pendency of the civil proceedings. The petitioner realising their mistake although belatedly approached the named Arbitrator in 2000 and filed their statement of claim before him. According to the petitioner although the arbitrator was approached in 2000 there was hardly any attempt by the arbitrator to conduct the arbitration effectively. Ultimately, in 2002 petitioner approached the Civil Court with an application under Order 23 of the Code of Civil Procedure, inter alia, praying for withdrawal of the suit. In the order-sheet annexed to the affidavit-in-op-position filed by the respondent it appears that the application was allowed by the Civil Judge, Senior Division, Darjeeling wherein it was recorded that the application for withdrawal was made on the ground that the arbitration proceeding had been initiated in terms of the contract between the parties and the said proceeding was pending on the said date. Upon hearing both the parties the learned Civil Judge, Senior Division, Darjeeling allowed the suit to be withdrawn with liberty to "file afresh". The learned counsel appearing for the respondent submits that the said application was not opposed by the respondent.
(3.) Even after the withdrawal of the suit the Arbitrator was not proceeding with the reference effectively. According to the petitioner, they paid a sum of Rs. 10,000/- to the Arbitrator for the purpose of advertisement of public notice in newspaper as the respondent was not appearing before the Arbitrator. Accordingly, advertisement was published. Pursuant to the advertisement the learned Advocate appearing for the respondent wrote to the Arbitrator on March 10, 2003, inter alia, contending that once the Civil Suit was filed, the parties waived their right to go in for arbitration and, as such, the Arbitrator was not entitled to proceed. According to the Arbitrator there were other issues which the petitioner was insisting to be gone into beyond the scope of the agreement and, as such, it was difficult for the Arbitrator to proceed with the reference. In course of hearing Mr. Mishra, leafned Advocate on instruction submits that the Arbitrator is not willing to act as Arbitrator and he should be relieved of responsibility. He, however, has filed an affidavit denying all the allegations made against him by the petitioner.;