Arbitration applications must adhere to contract stipulations for lawful proceedings; premature filings are not maintainable.

1. The present matter arises out of an application under S.115 of the Civil P.C.

2. Admittedly in terms of a contract of earth filling the opposite party executed some work for the petitioner 1 and her bills, to a considerable extent, remained unpaid. The contract contained an arbitration clause, being clause 16 and invoking the same the opposite party submitted an application, registered as Misc. Case No. 27 of 1987 before the learned Assistant District Judge, 3rd Court, Alipore under S.8(2) of the Arbitration Act for the appointment of an Arbitrator. The petitioner 1 contested the said application. It was urged by the petitioner 1 first that on the selfsame ground the opposite party submitted another application before the learned Judge - being Misc. Case No. 2 of 1987 - which was dismissed on contest on 18-5-87 and the review application being Misc. Case No. 19 of 1987 in respect of the same remaining pending, the instant application was barred by res judicata. It was also urged that the present application was not maintainable since the opposite party instituted T.S. No. 234 of 1986 for filing of the Arbitration Agreement under S.20(4) of the Arbitration Act and the said suit was still pending. It was also urged that since the contract was executed at Denkuni, Hooghly and the work was also executed there, the learned Judge had no jurisdiction to entertain the matter. The case of the opposite party was also challenged on merits and it was urged that the opposite party did not finish the work entrusted with her and other agencies had to be engaged to complete the work. It was also urged that the opposite party exaggerated her claims in respect of some items of her bill and that she has already been paid fully for whatever work she has done.

3. It appears that before the learned Assistant District Judge it was urged from the side of the opposite party that a notice for appointment of an Arbitrator under cl. 16 of the agreement had been sent to the petitioner on 19-5-1987 under registered post. The receipt of this notice was denied from the side of the petitioner and it was urged from their side that the petition under S.8(2) was not maintainable in the absence of such a notice. The petitioner, however, admitted receipt of an Advocate's letter dt. 2-7-1987 from the side of the opposite party. The learned Judge holding that the aforementioned notice dt. 19-5-1987 must have reached the petitioner since it had been sent under registered post and further that in any case the petitioners could have appointed an Arbitrator on the basis of the Advocate's letter dt. 2-7-1987 found the application under S.8(2) maintainable in law and he appointed a retired Hon'ble Judge of this Court as the Arbitrator in this case. Hence, this revisional application.

4. In the impugned order the learned Judge did not consider the technical objections taken from the side of the petitioner. We feel that he should have considered and recorded his findings with regard to these objections. We fail to understand how the present application under S.8(2) of the Act could be maintainable with an earlier application (Misc. Case No. 2 of 1987) for the selfsame relief on identical grounds and under the same provisions of law dismissed on contest and a review application (Misc. Case No. 19 of 1987) in respect of the same remaining pending. We also do not think that with application under S.20(4) of the Arbitration Act (T.S. No. 234 of 1986) pending, the present application under S.8(2) should have been permitted to continue. S.8 forms part of Chap. II of the Arbitration Act which contains provisions for arbitration without intervention of a court. S.20 on the other hand comprises the