SUDHANSHU SEKHAR GANGULY, J. - (1.) THE present matter arises out of an application under S.115 of the Civil P.C.
(2.) ADMITTEDLY in terms of a contract of earth filling the opposite party executed some work for the petitioner 1 and her bills, to a considerable extent, remained unpaid. The contract contained an arbitration clause, being clause 16 and invoking the same the opposite party submitted an application, registered as Misc. Case No. 27 of 1987 before the learned Assistant District Judge, 3rd Court, Alipore under S.8(2) of the Arbitration Act for the appointment of an Arbitrator. The petitioner 1 contested the said application. It was urged by the petitioner 1 first that on the selfsame ground the opposite party submitted another application before the learned Judge - being Misc. Case No. 2 of 1987 - which was dismissed on contest on 18-5-87 and the review application being Misc. Case No. 19 of 1987 in respect of the same remaining pending, the instant application was barred by res judicata. It was also urged that the present application was not maintainable since the opposite party instituted T.S. No. 234 of 1986 for filing of the Arbitration Agreement under S.20(4) of the Arbitration Act and the said suit was still pending. It was also urged that since the contract was executed at Denkuni, Hooghly and the work was also executed there, the learned Judge had no jurisdiction to entertain the matter. The case of the opposite party was also challenged on merits and it was urged that the opposite party did not finish the work entrusted with her and other agencies had to be engaged to complete the work. It was also urged that the opposite party exaggerated her claims in respect of some items of her bill and that she has already been paid fully for whatever work she has done. It appears that before the learned Assistant District Judge it was urged from the side of the opposite party that a notice for appointment of an Arbitrator under cl.16 of the agreement had been sent to the petitioner on 19-5-1987 under registered post. The receipt of this notice was denied from the side of the petitioner and it was urged from their side that the petition under S.8(2) was not maintainable in the absence of such a notice. The petitioner, however, admitted receipt of an Advocate's letter dt. 2-7-1987 from the side of the opposite party. The learned Judge holding that the aforementioned notice dt. 19-5-1987 must have reached the petitioner since it had been sent under registered post and further that in any case the petitioners could have appointed an Arbitrator on the basis of the Advocate's letter dt. 2-7-1987 found the application under S.8(2) maintainable in law and he appointed a retired Hon'ble Judge of this Court as the Arbitrator in this case. Hence, this revisional application.
(3.) IN the impugned order the learned Judge did not consider the technical objections taken from the side of the petitioner. We feel that he should have considered and recorded his findings with regard to these objections. We fail to understand how the present application under S.8(2) of the Act could be maintainable with an earlier application (Misc. Case No. 2 of 1987) for the selfsame relief on identical grounds and under the same provisions of law dismissed on contest and a review application (Misc. Case No. 19 of 1987) in respect of the same remaining pending. We also do not think that with application under S.20(4) of the Arbitration Act (T.S. No. 234 of 1986) pending, the present application under S.8(2) should have been permitted to continue. Section 8 forms part of Chap. II of the Arbitration Act which contains provisions for arbitration without intervention of a court. Section 20 on the other hand comprises the only section of Chap. III of the Act which provides for arbitration with intervention of a court where there is no suit pending. The scope and the provisions of S.8 are different from those of S.20. Section 8 applies so far as the appointment of an Arbitrator is concerned where in terms of the agreement the arbitrator is to be appointed by consent of the parties and the parties do not consent in such appointment even after service of a notice of fifteen days by one of the parties or where (2) the Arbitrator appointed - presumably by consent of the parties - cannot or does not act. Under such circumstances the court can on the application of the party to the agreement serving the notice appoint an Arbitrator of its choice after giving the other party an opportunity of being heard. Under Section 20 on the other hand the aggrieved party may petition the Court straightway for filing of the agreement in court and the court where the party fails to show sufficient cause "shall order the agreement to be filed, and shall make an order of reference to the arbitrator appointed by the parties, whether in the agreement or otherwise, or, where the parties cannot agree upon an Arbitrator, to an Arbitrator appointed by the Court". A party may pursue his relief under either section depending upon the circumstances and the steps taken by him, but he cannot pursue his relief under both the sections, simultaneously. This is because the proceedings under the two sections contemplate not the same end-result. Under S.8 the court may appoint any Arbitrator of its choice whereas under S.20(4) the court compulsorily has to refer the dispute to the Arbitrator appointed by the parties and it is only where the parties have not appointed any particular person or authority to act as an Arbitrator that the court can refer the dispute to an Arbitrator of its choice. The two sections prescribe different procedures and yield different reliefs and if a party is permitted to pursue his selfsame relief in respect of the selfsame dispute under both the sections simultaneously that may indeed lead to the engagement of two Arbitrators - one appointed by the parties as per their agreement of arbitration and the other by the Court - in respect of the selfsame dispute. Presumably to avoid such a confusing state of affairs it has been specifically laid down in Section 20 that one can move under that section instead of proceeding under Chap. II. It means that one cannot have recourse to S.20 if one has already started a proceeding under S.8 of the Act. What applies to S.20 also applies to Section 3 and for the same reason, though that has not been mentioned specifically in the Act as it has been done in the case of Section 20. IN the circumstances stated we are of the view that with the application under S.20 of the Act pending in the shape of T.S. No. 234 of 1986, the learned Judge should not have allowed the opposite party No. 1 to continue with the present application under S.8 of the Arbitration Act.;