- (1.) This application under Article 227 of the Constitution of India is directed against an order being No.47 dated 20th September, 2008 passed by the learned Civil Judge (Senior Division), Asansol in Title Suit No.11 of 2002 whereby it was held that an award which was passed by following the provision contained in Arbitration Act of 1940 (old Act) can be enforced by following the provision of the Arbitration and Conciliation Act, 1996 (new Act), in the facts of the instant case because of the peculiar nature of the arbitration agreement contained in Clause 9 thereof between the parties. The petitioner is aggrieved by the said order. Hence, the instant revisional application was filed by the petitioner before this Court. Heard Mr. Basu, leaned Counsel, appearing for the petitioner and Mr. Talukdar, learned Counsel, appearing for the opposite party herein. Considered the materials on record including the order impugned.
(2.) Let me now consider as to whether the learned Trial Judge was justified in passing the impugned order in the facts of the instant case. For proper appreciation of the matter in issue, some relevant facts are required to be taken note of. Those facts are as follows :- Admittedly, the dispute between the parties is covered by an agreement dated 21st September, 1987 which contained an arbitration clause which runs as follows :- "Clause 9 : All disputes or differences whatsoever arising between the parties out of or relating to the construction meaning and operation of effect of this contract or breach thereof shall be settled by sole arbitrator appointed by the CMD of ECL and the award of arbitration shall be final and binding on the parties concerned. The arbitration may from time to time with the consent of the parties enlarge the time for making and publishing the award. In all cases where the amount of the claim in dispute is Rs.50,000/- and above, the arbitration shall given reasons for the award. The arbitration proceeding shall be in accordance with the Arbitration Act, 1940 or any statutory modification or reenactment thereof and the Rules made thereunder and the time being in force shall apply to the arbitration proceeding under this clause."
(3.) For resolving a dispute between the parties through arbitration, a reference was made by the opposite party herein to the Chairman-cum-Managing Director of the petitioner herein, by invoking the aforesaid arbitration clause on 14th February, 1994. The said Chairman-cum-Managing Director, by his letter dated 30th June, 1994 referred the said dispute to the then Chief Engineer (Civil) ECL as the sole arbitrator. The said sole arbitrator entered into a reference on 29th July, 1994 and ultimately an award was published by the learned Arbitrator on 20th November, 2001. By the said award the petitioner herein was directed to pay a sum of Rs.67,58,032/- to the opposite party towards full and final settlement of all claims including interest @15% P.A. The petitioner was further directed to pay a further sum of RTs.33,37,300/- from the date of signing of the award till payment, in the event the payment of the awarded amount is not made to the opposite party within 90 days from the date of signing of the award. Subsequently an application was filed by the opposite party under Section 14 of the old Act inter alia praying for issuance of direction upon the Chairman-cum-Managing Director of the petitioner herein to submit the said award published on 20th November, 2001 along with the connected documents of the arbitration proceeding before the learned Trial Court without any further delay for enabling the learned Trial Court to make the said award a rule of Court. On the basis of the said application, a proceeding was initiated which was registered as Title Suit No.11 of 2002.;