Banerjee, J. - (1.) This appeal at the instance of the State of Assam arises out of an application under section 20 of the Arbitration Act. The relevant facts for our purpose are that the respondent company submitted a tender in respect of public notification inviting tenders for design and construction or re-construction of five bridges, namely, 7/1, 21/2, 22/2, 28/1 and 32/2 on North Trunk Road in the State of Assam under North Trunk Road Division and Mangaldoi Road Division of P.W.D., Assam. It is alleged that the said tender was accepted by the competent authority and the contract was entered into by and between the plaintiff and the defendant no. 1 for design and construction of the aforesaid bridges. In the said contract, it is alleged, clause 25 provides for arbitration of any dispute arising out of the execution of the contract. It is further stated that the company respondent could not complete the execution of the contract and the contract was terminated. The company did not challenge the termination of the contract but only applied for arbitration in respect of works done by the company. As the matter was not referred to the arbitrator, the application was made before the Second Court of Subordinate Judge, Alipore, 24 Parganas and as the application was filed the State of Assam showed cause, inter alia, contending that the Court of Subordinate Judge has no jurisdiction in the matter to which the agreement relates but only the Court at Shillong in the State of Assam has this jurisdiction. Secondly it is contended that as no notice under section 80 was given, the application under section 20 of the Act is not maintainable and thirdly it is argued 'by Mr. Dhar on behalf of the appellants that the said clause 25 of the conditions of contract of the Agreement is not an arbitration clause as this is only binding on the contractor and not on the other parties, that is, the State of Assam or the Executive Engineer and also they have no right to refer the matter to the arbitrator and as such there is no mutuality in the contract and therefore the arbitration has no application or for that matter it is not the arbitration clause. In our opinion in view of the Supreme Court judgment reported in Hakam Singh v. Gammon (India) Ltd., AIR 1971 SC 740 it must be held that the court has jurisdiction to entertain the application if the part of cause of. action arose within the jurisdiction of the Court. It must be held that in order to consider the jurisdiction of the Court in the matter of application under section 20 of the Act it has been specifically held that section 20 of the Code of Civil Procedure applies to the Arbitration proceeding also. In the facts of the case it appears that a part of the cause of action certainly arose within the jurisdiction of the Court deciding the application under section 20 of the Act. The acceptance of the tender was communicated to the petitioner at 13C, Deodar Street, Calcutta, and the payment under the said agreement was made at the State Bank of India, Gariahat Branch and furthermore the Bank guarantee was already given at the State Bank of India. In the circumstances, therefore, in our opinion, the part of cause of action upon which the agreement relates arose within the jurisdiction of the Court which decided the matter and therefore there is no merit in the contention of Mr. Dhar on this score.
(2.) The next question which Mr. Dhar argued is that the notice under section 80 is required for the purpose of the proceeding under section 20 of the Arbitration Act. This question was considered in the cases reported in AIR 1947 Sind, 147 (Firm Ramchand & Sons v. Governor-General) AIR 1933 Lahore, 374 Gian Singh v. Attna Ram), and AIR 1966 Cal., 259. Mr. Dhar argued that under section 20(2) of the Arbitration Act it is provided that an application shall be in writing and shall be numbered and registered as a suit between one or more of the patties interested or claiming to be interested as plaintiff or plaintiffs and the remainder as defendant or defendants if the application has been presented by all the parties or, if otherwise, between the applicant as plaintiff and the other parties as defendants. It has been held that under section 20 (2) of the Arbitration Act it is provided that an application that an agreement be filed in Court shall be numbered and registered as a suit, so an application is a plaint in a suit and therefore attracts section 80 of Civil Procedure Code and as such notice under section 80 of the Code of Civil Procedure is to be given. Under section 22A of the Arbitration Act it is provided that the agreement shall be filed in the Court being under Civil Rules and Orders, Vol-1, 528 Clause 47 and therefore the notice under section 80 of the Act is imperative. In our opinion, this argument cannot succeed. It has been held in the case reported in Firm Ramchand and Sons v. Governor General, AIR 1947 Sind, 147 repelling a similar argument advanced as follows:- "But in my view, it is not until the proceeding is actually before the Court that S. 41, Arbitration Act and the provisions of the Civil Procedure Code apply; for were to hold otherwise, so soon as an application to file an agreement is brought before the Court; the Court would dismiss the application, because the notice required under S. 80 Civil P.C. had not been given. But S. 80, Civil P.C., would not apply until the proceeding case before the Court. So that it would appear that if accepted the interpretation of S 41 put upon it by the learned Subordinate Judge, the provisions of S. 20, Arbitration Act and other sections of the Act and the purpose of the Act would be frustrated S. 80, would not apply until the proceeding came before the Court and when the proceedings came before the Court and S. 80. Civil P.C. applied the application to file the agreement would be dismissed : so the parties to the dispute would get no further." The Hon'ble Davis, C.J. of the Lahore High Court relied upon the case reported in AIR 1932 Lahore, 374 (Secretary of State v. Kundan Singh) in which the learned Chief Justice Shadi Lal dealt with the question of notice under section 80 of the Code of Civil Procedure as applicable to arbitration proceedings. The learned Chief Justice is clearly of opinion that section 80 of the Civil Procedure Code applies only to a suit; there is a reference in section 80 of the Civil P.C., to the plaint which supports the inference that it applies only to a suit and it may be said that a notice under section 80 of the Civil P.C. is rightly to be given to the Secretary of State when he is made defendant in a suit, for, otherwise, he would be taken by surprise, there can be no question of surprise in the matter of an agreement to which he is already a party and which provides for an arbitration in case of disputes In the case reported in SPC Engineering Co v. Union of India, AIR 1966 Cal. 259 it has been held that no notice under section 80 of the Civil Procedure Code is required in matter coming under section 20 of the Arbitration Act, 1940.
(3.) The last question which has been agitated by Mr. Dhar is that there is no mutuality in clause 25 of the agreement, inasmuch as, both the parties to the agreement have no right to go to the arbitration but only the contractor who can go to refer the matter to the arbitrator and that the same is binding on the contractor and not binding on the other parties. Mr. Dhar relied upon the case reported in AIR 1971 All 270 (State of U. P. v. Padam Singh) and argued that the contract is only binding on the contractor and there is no mutuality at all as an arbitration clause.;