The court has the authority to decide whether an arbitration agreement is in operation in a given contingency as provided in the agreement between the parties, and the termination of the contract and unilateral stoppage of work can trigger the bar under the agreement, precluding a reference to arbitration.

1. Plaintiff in a suit under S.20 of the Arbitration Act is the appellant. He was awarded a contract by the Kerala State Electricity Board (hereinafter mentioned as the Board) for the work of "S. A.S.-Construction of a Masonary Dam across Kullar" and the contract for the above work Ext.B11 dated 13-1-1978 was entered into, it was 7% above the estimate rate. Though he made all arrangements for doing the work with all enthusiasm and sincerity, he was not able to do it on account of failure of the concerned authorities of the Board to duly perform their obligation under the contract. The plaintiff has alleged in detail the defaults committed by the Board which prevented him from completing the work in time (the details of which are not very relevant to resolve the controversy in this case). Inspite of all this the plaintiff completed a major portion of foundation excavation. In the meanwhile, the Board terminated the contract as per Ext.A3 dated 23-10-1980 at the risk and cost of the plaintiff. This is illegal, improper and unjustifiable and he is entitled to be relieved of and exonerated from executing the balance work. There are many claims pending settlement with the defendant. They were submitted before the authorities, but there was no response and disputes and differences have arisen. The plaintiff has enumerated the various disputes between the parties in Para.11 of the plaint, including the validity and legality of Ext.A3 order terminating the contract at his risk and cost. The plaintiff further alleged that all disputes and differences are to be resolved by arbitration as provided in the agreement. Terms of references have not been agreed to and so the plaintiff filed the suit under S.20 to order the agreement to be filed in court and to refer the disputes to an Arbitrator to be appointed by court.

2. Defendant filed a preliminary objection dated 23-6-1981, contending that by virtue of Clause.57(f) of Part III of Ext.B-11 agreement, there shall not be any arbitration of any dispute or claim, once the work is completed or contract is terminated and in case work is stopped unilaterally or abandoned by the contractor. According to the Board the plaintiff stopped the work on 16-5-1980 unilaterally and as the plaintiff did not resume the work inspite of several notices and requests, the Board was forced to terminate the contract. According to them, the Arbitration agreement will cease to have effect once the contract is terminated or abandoned by the contractor and that having happened in this case, the plaintiff is not entitled to an order under S.20 of the Arbitration Act. The Board filed a written statement on 26-8-1981 reiterating the above objection and also putting forth their defence on the merits of the plaintiff's claim.

3. By order dated 21-12-1981 the trial court referred the dispute to arbitration. Board filed C.R.P.No.325 of 1982 and this Court set aside the order and remanded the matter to consider the applicability of S.20 and the scope of Clause.57(f) of the agreement. After remand, on analysing the evidence the lower court came to the conclusion that there was termination of the contract by the Board by issuing Ext.A3 order and that there was unilateral stoppage of work by plaintiff. Consequently the court below came to the conclusion that the bar under sub-clause (f) of Clause.57 of Part III will come into play and the plaintiff will not be entitled to have the matter referred to an Arbitrator. This appeal by the plaintiff is against the above order.

4. Before this Court counsel for the appellant apart from challenging the above findings, raised a further contention that the question as to whether a reference to Arbitrator is barred by virtue of Clause.57(f) of the agreement is also a matter to be determined by arbitration and not by the Court in a proceeding under S.20. In other words, according to counsel, when the legality and propriety of the termination order is challenged by the plaintiff or t