Executive Engineer, Municipality, Jammu vs Inderjeet Singh and another

DR. Anand, CJ.

At the out set Mr. Nanda, learned counsel for the appellant submits that this appeal has been wrongly styled as L. P. A. and that it is an appeal

under Sec. 39 of the Arbitration Act and that it be so treated. We grant the prayer.

This appeal is directed against the order of the learned Single Judge in Arbitration Application Mo. 150 of 1981 dated April 8, 1987. and has

arisen in the following circumstances:

Respondent No. 1, who though served in this appeal is absent, filed a petition under sec. 20 of the Arbitration Act seeking direction from the

court to the respondents in the application to file arbitration agreement in the court and to refer the dispute between the parties to the sole

arbitrator. Objections were filed and besides other objections it was stated on behalf of the appellant that there was no arbitration agreement in

existence between the parties and, therefore, neither the arbitration agreement could be directed to be filed in the court nor the dispute referred to

any arbitrator.

From the pleadings of the parties, on 16th December, 1982, the following issue was raised:

Is there no arbitration agreement existing between the parties out of which the alleged disputes are said to have arisen ? O, P. R.

The respondent was directed to lead evidence first. But it transpires that on 20th Dec. 1985, the parties submitted before the learned Single

Judge that they did not wish to lead any evidence and the case was, therefore, listed for hearing. Vide order impugned in the appeal the application

under section 20 of the Arbitration Act was allowed and a direction was issued referring the dispute to the Chief Engineer Public Health Engineer

Department, Jammu.

Mr. Nanda, learned counsel for the appellant, has submitted that the learned Single Judge did not decide the issue on 16121982 and no finding

whatsoever has been recorded by him regarding the existence of agreement between the parties and as such the judgment is unsustainable.

A perusal of the impugned order bears out the contention of Mr. Nanda. The learned Single Judge has not recorded any fining on the issue. He

has not even noticed, let alone considered and discussed, that issue, That, apart, we find that the order passed by the learned Single Judge under

Sec. 20 of the Arbitration Act also suffers from another legal infirmity in as much as while directing the dispute to be referred for arbitration to the

Chief Engineer Public Health Engineering Department, Jammu, BO direction was issued for 'filing' the arbitration agreement in the court, which

direction is a sinequanon for allowing the application Under Sec. 20 of the Act and referring the dispute to the arbitrator. The scope of enquiry

under section 20 of the Act is a limited one and is normally to be confined to an enquiry as to whether there is a written contract, the terms whereof

provide for arbitration and as to whether there was a dispute raised in terms of the agreement. The order to be made would depend upon the result

of the enquiry. No such enquiry was held by the learned Single Judge and that is legal infirmity.

In view of the infirmities, noticed above, the impugned order and judgment cannot be sustained. The same is hereby set aside. The case is

remanded to the learned Single Judge for its fresh disposal in accordance with law. There shall, however, be no order as to costs.