INDRAJIT CHATTERJEE,J. - (1.) This is an application under Article 227 of the Constitution of India assailing the order no. 46 dated 22.6.2011 passed by the learned Civil Judge (Senior Division) at Siliguri in Money Suit No. 13 of 2004. In that impugned order, learned trial court was pleased to allow one application filed by the State of West Bengal and others under Section 8 of the Arbitration and Conciliation Act of 1996 (hereinafter referred to as the Act) directing that the matter is to be decided by the Chief Engineer of the Department, the sole arbitrator in terms of clause 25 of the agreement to settle the dispute so raised by the plaintiff.
(2.) The fact relevant for the purpose of deciding this revisional application can be stated below in brief thus: - That the petitioner is the sole proprietor of the business under the name and style as "S. Sanyal and Co.". One tender notice was published for reconstruction of a bridge. The contract was secured by the petitioner and an approach was made to the authority to hand over the site of the works but the site could not be handed over. There was shifting of the venue and site, plan etc. The petitioner bore with all these and was eager to go on with the construction works but for some reason or other, the project did not mature. The security deposit worth Rs.4,00,000/ - and odd was forfeited. The matter was taken before the Arbitrator in respect of other claims as per the Arbitration Clause mentioned in that tender. The Arbitrator passed its award. It has been fully satisfied.
(3.) This petitioner filed a money suit before the Civil Judge (Senior Division), Siliguri within the district of Darjeeling praying for a money decree for the security deposit amounting to Rs.4,03,524/ - with interest at the rate of 9.5% thereon, declaring that imposition of penal Clause 2, which followed to recession of contract vide Memo no. 20 -7/191/1(2) dated 08 -02 -2001 by the defendant no. 4 was illegal or invalid. The plaintiff/petitioner also prayed for damage or attachment of property etc. The defendant appeared and came up with an application under Section 8 of the said Act claiming, inter alia, that as per Clause 25 of the tender the Chief Engineer is the sole authority to appoint one Arbitrator to decide regarding the return of that security deposit. Learned trial court allowed that application and directed the parties to approach the Chief Engineer of the Department, the sole Arbitrator, in terms of Clause 25 of the agreement to settle the dispute so raised by the plaintiff. It is submitted by Mr. Ghosh, learned Advocate, appearing on behalf of the petitioner that the present revisional application is very much maintainable in view of Section 37 of the said Act. He cited a decision of the Apex Court as reported in AIR 1989 SC 952 (Vishwanath Sood Vs. Union of India and Anr.) wherein the Apex Court made it clear vide paragraph 10 of the judgement to determine the issue, the power is vested on the court in view of Clause 25 of the tender "Except where otherwise provided in the contract all questions and disputes relating to ..." It may be noted that in spite of service, none is opposing the prayer made by the petitioner. The petitioner has claimed that the order impugned be set aside and the court will determine the issue itself as to whether the security deposit is refundable or not. It is also his submission that the court will also consider the other claims as made out in that money suit. ;