Judgment

JAGANMOHAN REDDY, J.:- On an application under Sections 9 (b) and 33 of the Arbitration Act 10 of 1940 - hereinafter called the Act - challenging the propriety of a reference to the arbitration of the sole arbitrator, the Subordinate Judge, Alipore permitted the appellant to adduce evidence to establish whether the contract was put an end to by final payment, and if it was whether the arbitration clause contained in the contract will perish with it Against this order the respondent filed a revision in the High Court of Calcutta which while setting aside the order of the Subordinate Judge dismissed the application filed by the appellant. This appeal is by certificate against that decision.

2. In order to appreciate the significance of the question which has to be determined a few relevant facts may be stated. The respondent entered into a contract with the appellant to supply, certain quantities of coal at certain price but as he failed to do so in accordance with the terms of the contract, the appellant repudiated the contract, imposed certain penalties in accordance with the terms of the contract which he later waived and ultimately paid certain sums to the respondent whi