L.M. Sharma, J. - (1.) The respondent filed an application under Sec. 8(2) of the Indian Arbitration Act for appointing an Arbitrator in accordance with clause 12 of the Agreement, Annexure 1, between the parties. The appellant -opposite party filed a rejoinder opposing the prayer. By the order under appeal dated 7.6.1984 the learned Subordinate Judge, Biharsharif, allowed the prayer and directed the petitioner and the opposite party to give names of appropriate persons so that the Court could appoint an Arbitrator out of them. The present appeal has been filed against this order. According to the petitioner's (respondent) case in his application, the agreement Annexure 1 was executed between the appellant -opposite party and the petitioner -respondent on 22.10.81, for operating an aerial ropeway chairlift project at Rajgir in the district of Nalanda. The petitioner was to function as the Commission agent and the opposite party was to hand over charge and control of the chairlift with accessories etc. for operating the same. Clause 9 of the Agreement stated that in the event of the closure of the chairlift for 7 days or more for repairs or for any valid reason, the petitioner would extend the period of agreement. Clause 12 reads as follows: - "That in the event of any dispute arising out of the agreement between the parties, the decision of the Arbitrator shall be final. The arbitration fee, if any, will be equally borne by both the parties". The petitioner has asserted in his application that the chairlift could work only for a short period and the operation was suspended for reasons for which the petitioner was entitled under clause 9 of the Agreement to extension of the period. Inspite of a demand by the petitioner, this was not done and the opposite party was accordingly liable to compensate the petitioner for damages to the tune of over 14 lacs of rupees. The opposite party purported to terminate the agreement by letter dated 12.10.83 and then forcibly took over the operation of the rope -way chairlift. The violation of the clauses in the agreement on the basis of which it could have been terminated has been denied. It is asserted that since the demand of the petitioner was not being acceded to, a dispute arose within the agreement and was covered by clause 12, mentioned above, for reference to an Arbitrator. The petitioner claims to have made a request in this regard to the opposite party unsuccessfully which necessitated the filing of the application.
(2.) The opposite party -appellant pleaded that the agreement stood terminated on 12.10.83 and no reference under clause 12, therefore, could have been made. It was further stated that the then District Magistrate of Nalanda Shri S.K. Lal was appointed as the sole Arbitrator for deciding the dispute in February, 1982 with intimation to the petitioner who consented to the same. The allegations in the petition on the basis of which the petitioner asserts that his claim for damages is correct were denied and it was also said that in a meeting held in the Government House, Patna, it was agreed that the operation of the disputed rope -way would be put under the supervision and control of Nalanda District Magistrate along with the Anchal Adhikari, Rajgir and the income received would be handed over to the petitioner after deducting the expenses etc. which was done without protest. It was emphatically asserted that clauses 6 and 7 of the Agreement had been violated and a reference to an arbitration under clause 12 of the Agreement was not available to the petitioner. Both the parties referred to several letters etc. in their pleadings.
(3.) The petitioner filed a rejoinder petition strongly refuting the allegations made by the opposite party. It was asserted that Nalanda District Magistrate was not appointed as Arbitrator at any point of time nor did he give award as suggested. The claim in the petition under Sec. 8(2) was reiterated. From the order -sheet of the case and the impugned judgment, it appears that the parties did not lead any evidence apart from relying on the documents annexed to their pleadings.;