Ashim Kumar Banerjee, J.

Both these appeals would relate to a common judgment and order dated October 11, 2012 passed by the learned Single Judge under Section 20 of the Arbitration Act, 1940. Since the plea of maintainability was taken in both the appeals we heard the parties at length on the preliminary issue that would be disposed of by the foregoing judgment and order.

Bharat Industries & Commercial Corporation was a partnership firm. The firm was represented by two groups being Maheshwaris and Kocher group. The parties fell out resulting in dispute and differences that were referred to two arbitrators in August 1984.

As a result, proceeding was to be governed by the old Arbitration law being the Arbitration Act, 1940. Maheshwaris filed suit inter alia, claiming that the claim of the Kochers became barred by limitation and there could not be any further dispute to go to arbitration. They also contended, Kochers assigned their share in favour of one Omprakash who, in turn, transferred to one Kishan Mimani who also filed a suit for specific performance of the agreement. The reliefs claimed in Maheshwarissuit would include a declaration that the defendants did not have any right, title and interest in the dissolved partnership firm. Both the suits were pending. There were protracted litigations. Attempt to stall the hearing of the suits failed on the ground that Section 8 of the new arbitration law being the Arbitration and Conciliation Act, 1996 would have no application. Kochers approached the learned Judge on the ground that arbitration agreement was still valid and subsisting. They already appointed their nominee. The Maheshwaris failed to appoint their nominee, although asked for. Hence, they were entitled to have an independent arbitrator to act on behalf of the Maheshwaris. The learned Single Judge by a judgment and order dated October 11, 2012 appointed Mr. Pradosh Kumar Mallick, a senior advocate of this Court to act as co-arbitrator coupled with a direction upon the arbitrators to appoint an umpire.

Being aggrieved, Mimanis as well as Maheshwaris preferred two distinctive appeals as above.

The learned Advocate General appearing for Kochers took the plea of maintainability in both the matters. Hence, we heard the parties on the issue. We however, like to point out, Maheshwaris’ appeal was within time whereas Mimani’s appeal was barred by nine days.

The learned Advocate General contended, Section 39(1) of the said Act of 1940 would prescribe the orders that would be available for judicial scrutiny in an appeal. Orders impugned being not included, none of the appeals would be maintainable. He relied on the decision of the Apex Court in the case of Union of India –VS-The Mohindra Supply Company reported in All India Reporter 1962 Supreme Court Page-256 and the Division Bench decision of this Court in the case of Union of India –VS-Consultants for Industries Private Limited reported in Volume-80 Calcutta Weekly Notes Page-662.

Opposing the contentions, Mr. Ajay Krishna Chatterjee, learned senior advocate appearing for Maheshwaris contended, Section 39(1) did not put any ouster of the competence of the Court to entertain appeal from the order of the like nature that could not be said to be not an order under Section 20. According to him, the order passed under Section 20 directing filing or refusing to file an arbitration agreement would be appealable. Since the order impugned would relate to determination of the rights of the parties under the arbitration agreement the appeal would be maintainable. He contended, initially order under Section 20 did not contain any direction to file the agreement. Moreover, the earlier order did not attain finality as there was no direction for appointment of arbitrator on behalf of Maheshwaris that was passed by the order impugned. Hence, the present appeal would be maintainable. He distinguished the decision in the case of Consultants for Industries Private Limited (Supra) by