Court can direct production of document.

This appeal is preferred against the order passed by the learned Single Judge in Application No.6413 of 1991 in O.P.No.37 of 1989 dated 3. 1992 to refer two additional issues to arbitration for adjudication by a retired Chief Justice of Gujarat High Court.

2. The respondent in Application No.6413 of 1991, viz., Superintending Engineer, Fishing Harbour, is the appellant. The respondent is Andhra Civil Constructions. It is averred in the petition filed by the respondent herein that they entered into a contract with the appellant for the construction of a rubble-cum-dolosse protection (eastern breakwater) at the Chinnamuttom Fishing Harbour in Kanyakumari and an agreement dated 17. 1984 was entered into between the parties. The above work was completed on 30.9.1987. During the course of execution of work, certain disputes arose between the applicant and the respondent and as there wasan arbitration clause and wanted to refer the dispute to arbitration. However, the appellant herein filed O.P.No.37 of 1989 before this Court, under Sec.33 of the Arbitration Act contending that the disputes could not be referred to arbitration. During the hearing of the above O.P., both parties filed a memo before the learned Single Judge of this Court, for the appointment of Justice P.R.Gokulakrishnan (Retired Chief Justice of the Gujarat High Court),as the sole arbitrator to hear and decide the disputes between the parties. Accordingly, as per an order dated 12. 1991, the learned Single Judge appointed Justice P.R.Gokulakrishnan as the sole arbitrator and the arbitration proceedings started with regard to the disputes between the parties. Later, the respondent Andhra Civil Constructions Company, filed another application-Application No.6413 of 1991-for referring two additional issues for arbitration, viz.,

(1) the liability, if any, for the payment of excise duty on dolosses is that of the respondent and is not the Government bound to discharge such liability and help the contractor indemnified against the same and

(2) Whether the respondent is liable to refund the Security Deposit of Rs.5.56 lakhs to the applicant to the arbitration of Mr.Justice P.R.Gokulakrishnan?

3. The appellant herein filed objections to refer the above two additional issues to arbitration. The learned Single Judge, however, held as follows

“It is not the case of the Department that the dispute now raised by the petitioner in this application is not referable to the Arbitrator. The only reason given was that it is unnecessary to bring this matter before the Arbitrator when an appeal is pending before the duly constituted appellate authority. In my view, to avoid multiplicity of proceedings, the disputes referred to in paragraph 6(1) and (2) have to be referred to the same Arbitrator which will avoid multiplicity of proceedings. That apart, the Arbitrator is dealing with the terms of the agreement and other factual considerations exhaustively with reference to the present disputes. It will be advantageous to both parties to have an adjudication of the two disputes now raised, also before the same Arbitrator. That apart, since a lot of documentation, including the agreement are already with the learned Arbitrator, duplication of such documents can also be avoided.”

4. Aggrieved by the above order, the appellant herein has preferred this appeal. It is contended by the learned Additional Government Pleader that the order of the learned Single Judge is unsustainable in law. In any event, the learned single Judge erred in law in referring the following additional dispute, viz.,

“The liability, if any, for the payment of excise duty on dolosse is that of the respondent and is not the Government bound to discharge such liability and help the contractor indemnified against the same.”

It is stated that in terms of the contract between the parties, one of the items of work to be done by the respondent was the casting of a concrete protection to the breakwater, termed as dol