Basudev Panigrahi, J. - (1.) This is an application filed under Article 227 of the Constitution of India praying to set aside the judgment and/or order dated April 1, 1993 passed by the learned Assistant District Judge, 5th Court Alipore in Title Suit No. 80/92 appointing one of the retired District Judges to be the sole arbitrator.
(2.) The Petitioner, Central Railway i.e. Controller of Stores, Central Railway Bombay had invited quotation by issuing the tender notice in the News -paper for procurement of Side Hung Type Glazed Steel Window. The opposite party Asoke Industries who is the Plaintiff in the lower court submitted in response to the advertisement an application expressing its inclination for supply of the articles invited under the tender. The Petitioner also accepted the tender purported to have been submitted by the Plaintiff/opposite party in response to the tender notice of the Petitioner. Sometimes thereafter an agreement was executed between the parties wherein certain terms and conditions had been stipulated. It is the case of the Plaintiff that despite supply of the articles to the Applicant. Central Railway, the letter did not clear up the dues of the company, therefore, the Plaintiff was obliged to file a suit for referring the dispute to an arbitrator. As per the terms of the agreement, in case of a dispute between the parties, it is open to either party to move to the court for appointment of an arbitrator. Accordingly, the Plaintiff -opposite party has filed a suit before the 5th Assistant District Judge, Alipore under Sec. 20 of the Indian Arbitration Act, 1940 in T.S. No. 80/92 for resolving the dispute differences between the parties. It is further stated that the Applicant despite notice did not raise any objection and accordingly the learned Court below appointed an arbitrator directing him to resolve or settle the dispute between the parties. It is submitted by the Plaintiff that the Applicant not only did appear before the arbitrator but had taken time after time and finally did not cooperate with him. It is further claimed by the Plaintiff/ opposite party that an adjournment was sought before the arbitrator that Central Railway Administration had decided to file appeal against the decision of the Assistant District Judge and preparation were on for requesting the Court for reviewing and setting aside the orders of appointment of the sole arbitrator in the aforementioned suit. Such application was presented before the arbitrator on April 8, 1994. Instead of filing appeal in any forum the Central Railway rushed to this Court by filing an application under Article 227 of the Constitution of India on July 25, 1994.
(3.) The main thrust of the Applicant's submission is that the Respondent/opposite party Plaintiff while entering into contract had agreed to abide by the term.: and conditions stipulated in the agreement. Governing Rules of the said contract are quoted hereunder: 2702 Irrespective of the place of delivery, the place of performance of place of payment under the contract the contract shall be deemed to have been made at the place from which the acceptance of tender has been issued. 2703 Jurisdiction of Courts - - The Courts of the place from where the acceptance of tender has been issued shall alone have jurisdiction to decide any dispute arising out of or in respect of the contract. 2900 Arbitration (a) In the event of any questions, dispute of difference arising under these conditions or any special conditions of contract, or in connection with this contract (except as to any matters the decision of which is specially provided for by these or the special conditions) the same shall be referred to the sole arbitration of a person, appointed to be the arbitrator, by the GENERAL Manager in the case of contracts entered into by the Zonal Railways and Production Units by any Member of the Railway Board, in the case of contracts entered into by the Railway Board, and by the Head of the Organisation to respect of contracts entered into by the other organisations under the Ministry of Railway. If, however, the arbitrator is a Railway servant, he will not Le one of those who had an opportunity to deal with the matters to which the contract relates or who in the course of their duties as Railway servants have expressed views on all or any of the matters under dispute or difference. The award of the arbitrator shall be final and binding on the parties to this contract. (c) It is further a term of this contract that no person other than the person appointed by the authority as aforesaid should act as arbitrator and that if for any reason that is not possible, the matter is not to be referred to arbitration at all. (d) The venue of arbitration shall be the place from which the acceptance note is issued or such other place as the arbitrator at his discretion may determine.;