West Bengal State Electricity Distribution Company Limited @Hash Satya Narayan Dutta

Biswanath Somadder, J

By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay.

The instant appeal arises out of a judgment and order dated 2nd November, 2016, passed by a learned Single Judge in W. P. 16786 (W) of 2016 (Satyanarayan Dutta vs. W.B.S.E.D.C.L).

By the impugned judgment and order, the writ petition was disposed of by directing appointment of an Arbitrator in terms of an arbitration clause of an agreement between the parties within a certain timeframe as specified in the impugned judgment and order. The learned Single Judge has been further pleased to direct that the Arbitrator would enter upon the reference and publish the award within three months from the date of the order. According to the learned Single Judge, the question of limitation was also to be decided by the Arbitrator.

The instant appeal has been preferred by the licensing company, namely, West Bengal State Electricity Distribution Company Limited.

It is the specific case of the appellant that the learned Single Judge proceeded on a misconception that the civil proceedings availed of by the respondent/writ petitioner had not been decided on its merit. From the civil Court's proceedings, it will appear that the respondent/writ petitioner had given an opportunity of hearing to avail of the same, but failed to succeed. In Ground IV of the Memorandum of Appeal, it has been specifically stated by the appellant that the respondent/writ petitioner filed an application under sections 5, 8, 11 and 12 of the Arbitration Act, 1940, before the learned Additional District Judge at Bankura and the said proceeding was initially numbered as Miscellaneous Case No. 117 of 1984 and subsequently renumbered as Miscellaneous Case No. 10 of 1986. The respondent/writ petitioner had prayed for withdrawal of the said proceeding and his prayer for withdrawal of the Miscellaneous Case No. 10 of 1986, was allowed on 5th November, 1986. The appellant has categorically stated that having withdrawn the Miscellaneous Case No. 10 of 1986, on 5th November, 1986, the respondent/writ petitioner could not have filed the application under Article 226 of the Constitution of India essentially seeking for the same reliefs as prayed for before the learned Court below. It has also been stated by the appellant that after withdrawal of the application for appointment of an Arbitrator, being Miscellaneous Case No. 10 of 1986, the respondent/writ petitioner once again filed a similar application under sections, 5, 8, 11 and 12 of the Arbitration Act, 1940, before the learned Assistant District Judge at Bankura, which was numbered as Miscellaneous Case No. 44 of 1987. Ultimately, the said miscellaneous case was dismissed by the learned Civil Judge (Senior Division), Bankura on 29th May, 1999, holding, inter alia, that the said miscellaneous case was not maintainable. After dismissal of that Miscellaneous Case No. 44 of 1987, the respondent/writ petitioner had challenged the order of dismissal of the said application by filing a revisional application, which was also dismissed.

Considering the facts as stated aforesaid, we are of the view that the learned Single Judge ought not to have issued a mandatory direction for appointment of an Arbitrator. The writ petition - on the face of it - was patently misconceived and can also be construed as an abuse of process of the Court.

For reasons stated above, we allow the appeal by setting aside the impugned judgment and order dated 2nd November, 2016, passed by the learned Single Judge in W. P. 16786 (W) of 2016. Consequently, the writ petition, being W. P. 16786 (W) of 2016, also stands dismissed.

The appeal and the application for stay stand allowed accordingly.

In view of the disposal of the appeal and the application for stay, no further order is required to be passed in the connected application, being CAN 2366 of 2017, which stands disposed of accordingly.