( 1 ) PRESENT is an appeal under Section 39 of the Indian Arbitration Act, 1940 against the order dated 31. 3. 98 passed by the learned 7th Joint Civil Judge (Senior Division), Vadodara in Special Civil Suit No. 151 of 1994, granting the application filed by the present respondents under Section 20 of the Arbitration Act and further directing that Mr. M. D. Deshmukh, Ex-Secretary of Maharashtra State Government be appointed as an Arbitrator and he shall proceed further in the matter, arbitrate into the dispute and submit his award within four months from the date of the order.

( 2 ) PLAINTIFFS/respondents filed an application under Section 20 read with Section 8, so also under Section 33 of the Indian Arbitration Act, 1940 (hereinafter referred to as "the Act"), requiring the Court to grant the application, requisition the agreements allegedly in possession of the non-applicant/present appellant and appoint an Arbitrator in terms of the agreements. It was contended that the present appellant were awarded some works contract by Sardar Sarovar Nigam and the appellant awarded sub-contract to and entered into an agreement with the present respondents on 22. 3. 92. It was also alleged that one Rameshbhai, on behalf of the present appellant contacted the original plaintiffs and entered into an agreement. It was further say of the present respondents/plaintiffs that the original agreement dated 22. 3. 92 was subsequently modified and revised on 25. 9. 92 and 17. 11. 92. The submission in the application was that as the dispute had arisen, the matter in accordance with the terms of reference was required to be referred to the arbitration, but the present appellant having failed in referring the matter to the arbitration, the court may ask them to produce a copy of the original agreement and thereafter, the Court may appoint an Arbitrator for making an award.

( 3 ) THE present appellant filed their written statement as defendant. They agreed to certain facts stating that contract was awarded in their favour by Sardar Sarovar Nigam and they awarded a sub-contract in favour of the original plaintiffs on 22. 3. 92. They however, candidly and categorically denied the fact of execution of the revised/supplementary agreements on 25. 9. 92 and 17. 11. 92. It was also pleaded by them that Shri Rameshbhai, for and on behalf of the present appellant never approached the present respondents and the typed copy of the alleged agreements dated 25. 9. 92 and 17. 11. 92 were forged and concocted documents and signatures alleged to be of the Managing Director, namely, Mr. Abhijit Rajan were forged. It was submitted that in relation to the forgery in the documents, the defendant/present appellant has taken criminal action and has already filed a suit in Vadodara Court for recovery of Rs. 1,54,00,000/- and odd because of the breach committed by the present plaintiffs. It was submitted that the application was worth rejection, because, the foundation on which the application was filed was nonest and was on a forged agreement.

( 4 ) IT is to be noted that along with the application filed under Section 20, the plaintiffs had filed number of the documents including typed copies of the agreements dated 25. 9. 92 and 17. 11. 92. They had also filed a letter alleged to be written by one Rameshbhai, wherein, said Rameshbhai had stated that the agreement was executed between the parties and said Rameshbhai was possessing the agreement. The defendants, along with their written statement filed original agreement/memo of understanding dated 22. 3. 92 and copy of the plaint in the Vadodara Suit. It is to be noted that the learned trial court, even on the disputed facts did not cast any issues, but proceeded to hear the parties and ultimately on the basis of the pleadings and documents observed that there is no reason for Rameshbhai to tell lies in his alleged letter and as the original defendant was not ready and willing to produce the orig