Judgment

SABYASACHI MUKHARJI, J. :- Special leave granted. This is an application challenging the order of the learned single Judge dt. 8th Dec. 1986 of the High Court of Calcutta. By the impugned judgment the said learned Judge has set aside the order dt. 19th April, 1983 of another learned single Judge on the ground, inter alia, that the first learned Judge, when she passed the order, acted without jurisdiction. There was an arbitration agreement. Clause 25 of the said Agreement, inter alia, was as follows :

Clause-25

"Except where otherwise provided in the contract all questions of disputes relating to the granting of specifications, designs, drawing and instructions hereinbefore mentioned and as to the quality of workmanship and materials used in the work or as to any question claims. rights, matters, or things whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions orders or these conditions or otherwise concerning the work or execution or failure to execute the same where arising during the progress of the work or after completion or abandonment thereof was to be referred to sole arbitration of the Director / Unit Head, C.M.D.A. not connected with the particular work as may be appointed by the authority. The award of the arbitrator shall be final, conclusive and binding on all the parties to the contract."

2. On that basis the respondent 1, had moved an application for removal of the named arbitrator before the first learned Judge which came up for hearing on 19th April, 1983 and this was by filing of an application under S. 20 of the Arbitration Act for an order for filing the arbitration agreement, for appointment of an arbitrator and for other consequential reliefs. By the order dt. 19-4-83 the said learned Judge has recorded the facts of this case and further recorded that by virtue of Cl. 25 of the agreement the appellant herein had prayed for appointment of an arbitrator for determination of the dispute that had arisen which had been set out in para 15 of the petition. Inasmuch as according to the appellant the directors of all the units of Calcutta Metropolitan Development Authority had already expressed their opinion in respect of the disputes that had arisen between the appellant and the respondent and inasmuch as by the Central Tender Committee, the Directors were members. Under the circumstances the appellant apprehended that the appellant might not get justice or proper relief under such circumstances. There was reasonable basis of the apprehension against the unnamed arbitrator, and it was urged that instead of appointing any officer of the respondent as arbitrator an independent member of the Bar to be appointed as arbitrator. The learned Judge passed such order on 19th April, 1983 while recording these facts as alleged by the petitioner. These appear to have been reasons for appointing Sri Amitav Guha as the arbitrator in this case in terms of prayer (c) of the said petition.

3. The learned Judge in the impugned order has observed that if the Court was bound to enforce the particular agreement with which the parties came to the Court, and the parties were not entitled to have any fresh opportunity to appoint a new arbitrator as that would amount to a new agreement between the parties. This position is good in so far as it goes. But that does not solve the problem in all situations. The learned Judge also observed that no appointment can be made by the Court on the ground of disqualification of the arbitrator without having proper materials on record and without coming to a definite finding on this point. The learned Judge further observed that the Court either should have given effect to the agreed machinery for appointment of the arbitrator or it could have appointed afresh after coming to a clear finding that all Directors of the Unit of C.M.D.A. were biased against the appellant herein as well as they had rendered themselves disqualified fr