The intention of the parties to settle the matter through arbitration precluded the revival of the suit, and the application for appointment of a new arbitrator was dismissed as it was misconceived and not maintainable.

JUDGMENT

The petitioner has filed the instant application for appointment of new Arbitrator to proceed with the arbitration proceeding from the stage, it was left by the previous arbitrator and to make and publish an Award within six months or in the alternative the suit be reviewed and be transferred to Commercial Division of this Court and to proceed with from the stage suit was left at the time of passing of the order dt. 11th September, 2008.

Initially the petitioner had filed a Civil Suit No. 81 of 2002 against the respondent praying for following reliefs :

“a) Leave under order 2 Rule 2 of the Code of Civil Procedure, 1908;

b) Decree for Rs. 20,72,36,568/-

c) Alternatively, an enquiry into the damages suffered by the plaintiff and decree for the amount found on such enquiry

d) Interest;

e) Costs;

f) Further and other reliefs;.”

During pendency of the suit, the Learned Advocate for the petitioner had forwarded a letter together with a draft application under Section 89 of the Code of Civil Procedure, 1908 for referring the dispute pertaining to the suit before the Learned Arbitrator to the Learned Advocate for the respondent on 28th July, 2008. In reply to the abovementioned letter, the Chief Engineer (NH), Government of West Bengal, Public Works (Roads) Directorate, Audit Branch vide his Memo No. 1C-2007/645-R/ADT dt. 26th August, 2008 had forwarded approval for appointment of Arbitrator to the Learned Advocate for the respondent and the Learned Advocate for the respondent had forwarded the same to the Learned Counsel for the petitioner with the request to move the said application after notice to the respondent. After approval of the proposal for appointment of Arbitrator, the petitioner has filed an application in C.S. No. 81of 2008 being G.A. No. 3037 of 2008 and on 11th September, 2008, this Court had passed the following order :

“The Court: The parties are agreed that the entire subject matter of the present suit including the issues as framed by this Court be referred to arbitration and that Justice Baboolal Jain (Retired) be appointed as Arbitrator.

In view of such agreement, this application made under Section 89 of the Code, of Civil Procedure, 1908 is disposed of. There will be an order in terms of prayers (a), (b) and (c) by agreement of parties.

GA No.3037 of 2008 is disposed of and the suit being CS No. 81 of 2002 should also be treated as disposed of.”

In terms of order dt. 11th September, 2008, the Learned Arbitrator had initiated Arbitration proceedings and on 26th August, 2011 had published an Award. Being aggrieved and dissatisfied with the Award, the respondent had preferred an application under Section 34 of the Arbitration and Conciliation Act, 1996 before this Court being AP No. 1087 of 2011 for setting aside the Award dt. 26th August, 2011. By a judgment dt. 4th January, 2017, this Court had set aside the Award with respect of the claim nos. 2, 4, 9 and 10 and the application under Section 34 of the Act of 1996 was allowed in part.

Both petitioner as well as the respondent have preferred an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 against the Judgment dt 28th August, 2011 before the Hon’ble Division Bench of this Court being APO No. 398 of 2017 (State of West Bengal & Ors. -versus- Bharat Vanijya Eastern Private Limited) and APO No. 419 of 2017 (Bharat Vanijya Eastern Private Limited -versus- The State of West Bengal). The Hon’ble Division Bench had disposed of the said appeals on 7th November, 2019 by passing the following order :

“44. Clearly, the arbitral award in this case falls well short of what was required of it by the governing statute as and by way of reasons. The bases of the claims under the individual heads are not alluded to in any discussion, whether as to the issues or as to the heads of claim. In a few cases the subjective satisfa