Per BPR,J

This appeal is at the instance of the railway authorities, under Section 39 of the Arbitration Act, 1940 seeking to assail the judgment and decree in O.S.259 of 1994, dated 13-8-2002, on the file of Principal Senior Civil Judge, Vijayawada.

Heard Sri R.S. Murthy, learned Standing Counsel for the appellants and Sri T. Ravikumar, learned counsel for the respondent.

The brief facts leading to this appeal are that in the suit filed under Section 26 r/w Sections 20, 22 and 47 of Arbitration Act 10 of 1940 (for short the Act), the respondent plaintiff, having regard to the disputes that arose between the parties, sought direction for filing the arbitration agreement and to appoint an arbitrator on the dispute in respect of claims with interest at 24% p.a., and refer the matter for arbitration.

Though there have been several checkered events earlier between the parties including similar exercise of arbitral proceedings leading to passing of an award already, we refrain from dealing with the same, as they are not required to be considered at this stage. Be that as it may, the present claim is with regard to the claim as to the interest on the amount already awarded in an earlier round. Therefore, the respondent plaintiff sought for appointment of an arbitrator.

The appellants herein contested the claim inter alia on various grounds including that the very relief as sought for is neither maintainable nor sustainable, on the facts and circumstances, especially having regard to the earlier round of arbitral proceedings, wherein the amounts were determined and awarded and were paid by the appellants and received by the respondent herein. Therefore, further the question of awarding any interest as claimed does not arise and any such claim should be barred under the principle of res judicata and estoppel. On this and other contentions and the respective pleadings, the court below framed the following issues:

1. Whether he defendants can be directed to appoint arbitrator in respect of the claim of interest as prayed for ?

2. Whether the suit is bad for non-joinder and mis-joinder of cause of action ?

3. To what relief ?

4. During the course of trial, the proprietor of the plaintiff firm examined himself as PW.1 and marked Exs.A.1 to A.6. On behalf of defendants one Mr. Gandhi, the Superintendent, Railway Electrification, Visakhapatnam was examined as DW.1 and no documents were marked.

5. After considering the evidence, both oral and documentary, the court below, having totally lost sight of the scope of the relief as sought for and the provisions of the Act especially Section 20 of the Act, has gone into merits of the case and proceedings as if these proceedings were initiated assailing the earlier award on the ground of not awarding interest and held that there is no necessity to appoint an arbitrator afresh, that the respondent is entitled to interest at 12% per annum on the amounts, which have been awarded earlier in O.S.156/1988. Aggrieved by the said judgment, the defendants filed this present appeal.

6. Sri R.S.Murthy, the learned Standing Counsel appearing for the appellants strenuously contended that the relief sought for and ultimately the relief granted are quite distinct, and apart from that, the decree goes far beyond the scope and jurisdiction of the Court, as provided under the Act. Therefore, the same is liable to be set aside.

7. Sri T.Ravikumar, Learned counsel appearing on behalf of the respondent sought to sustain the findings of the court below and submitted that on the facts and circumstances, the respondent would be entitled to interest on the amount earlier awarded in O.S.156 of 1988, and the court below rightly awarded the same, and therefore, the order of the court below does not warrant any interference of this Court.

7. On this and other contentions made across the bar, the only point that arises for consideration is whether in an arbitration ap