PANWAR, J. - (1.) THIS appeal is directed against the order dated 5. 03. 1994 passed by learned District Judge, Udaipur in Civil Misc. Case No. 287/92 whereby an application filed by the respondent before the learned trial court under Section 20 of the Arbitration Act, 1940 was allowed and Shri Ram Narayan Sharma, Advocate, Udaipur was appointed as Arbitrator for deciding the dispute arising out of the agreement dated 17. 8. 1990 between the parties. It was further directed by the trial court that according to the provision of Arbitration Act, 1940, the Arbitrator is to make an awarded on the basis of the conditions of the agreement 17. 8. 1990 within a period of 4 months from the date of appearance of the parties.
(2.) AGGRIEVED by the order impugned the appellant has come in the appeal before this Court. It is contended by the learned counsel for the appellant that specific stand was taken by the appellant before the trial court by filing a detailed reply to the application under Section 20 of the Arbitration Act that the appellant never entered into any agreement with the respondent and the alleged agreement dated 17. 8. 1990 is a forged document. It was further contended that firstly; the execution of the agreement itself has been specifically denied by the appellant with serious allegation of the fraud and secondly; from the application filed by the respondent it nowhere discloses the arbitrable dispute between the parties. He has relied on the judgment of the Hon'ble Supreme Court in Abdul Kadir Shamsuddin Bubere, vs. Madhav Prabhakar Oak and another (1), wherein the Hon'ble Supreme Court in clear terms held that where serious allegations of fraud are made against a party and the party who is charged with fraud desires that the matter should be tried in open court, that would be a sufficient cause for the Court not to order an arbitration agreement to be filed and not to make the reference. It was further held that it is only in case of allegations of fraud of a serious nature that the Court will refuse to order an arbitration agreement to be filed and will not make a reference. Learned counsel for the respondent supported the order impugned and in alternative he submits that if the execution of the agreement dated 17. 8. 1990 is disputed then it is for the trial court to decide as to whether there is a arbitrable agreement between the parties or as to whether the appellant has executed the said agreement dated 17. 8. 1990. I have gone through the order impugned and the record of the case. The learned trial court in para 4 of the order impugned reached to the conclusion that so far execution of the agreement is concerned, it has been admitted by the non-applicant who is appellant herein. This finding is contrary to the record of the case. The appellant at no point of time has admitted the execution of the agreement dated 17. 8. 1990. On the contrary, a plea was raised in the reply that the alleged document is a forged and fabricated. The plea was also taken that the appellant never executed such agreement. Thus the conclusion arrived at by the learned trial court is obviously erroneous, and as such cannot be sustained. In this view of the matter, the order impugned is not sustainable in law and consequently, the order impugned dated 5. 03. 1994 passed by the learned District Judge, Udaipur in Civil Misc. Case No. 287/92 is hereby set aside and the matter is remitted to the learned trial court with the direction to decide as to whether there is a arbitrable agreement between the parties and also as to whether there exist any arbitrable dispute between the parties and thereafter to decide the application filed by the respondent under Section 20 of Arbitration Act in accordance with law. Record of the trial court be sent forthwith. No order as to costs. .;