Calcutta High Court
Soumitra Kumar Ghosh vs Asansol Durgapur Development ... on 7 April, 2010
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
AP No. 56 of 2009
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SOUMITRA KUMAR GHOSH
Versus
ASANSOL DURGAPUR DEVELOPMENT AUTHORITY & ANR.
For the Petitioner : Mrs. S. Mukherjee, Advocate
Mrs. Aparna Banerjee, Advocate
For the Respondents : Mr. Raja Basu Chowdhury, Advocate
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE Date : 7th April, 2010.
The Court : The petitioner has made this unusual request under Section 11 of the Arbitration and Conciliation Act, 1996 in respect of three several agreements. It is not the petitioner's case that a common arbitration agreement covers the three contracts.
At the final hearing the petitioner has been permitted to elect, whereupon the petitioner has chosen contract no. 8/A of 1987-88 as the one that would be pressed in the present proceedings. According to the petitioner, the agreement was entered into in or about the year 1987 and the work thereunder was completed by the petitioner in the year 1988. The 2 petitioner says that following disputes and differences having arisen between the parties, the petitioner instituted proceedings under Sections 5, 8, 9, 11 and 12 of the Arbitration Act, 1940 before the Court of the Assistant District Judge at Asansol being Misc. Case No. 181 of 2003 in Title Suit No. 84 of 1991.
In view of such earlier proceedings having been instituted, it would be evident that proceedings under the 1940 Act had commenced prior to 1996 Act or the ordinance that preceded it coming into effect.
Section 21 of the 1996 Act defines commencement of proceedings. Section 85(2) preserves arbitral proceedings that commenced under the 1940 Act notwithstanding the repeal of the earlier enactment. It is conceivable that disputes may have arisen prior to the 1996 Act coming into effect but the arbitral proceedings had not commenced. It is only in respect of such matters that the 1996 Act can be invoked.
As is evident from the petition itself, the petitioner had invoked the 1940 Act and the application for the appointment of an Arbitrator, according to the petitioner, still remains pending. The present request under Section 11 of the 1996 Act is misconceived as the 1996 Act could not have been invoked in respect of a reference or an arbitration agreement where the 1940 Act had already been invoked by the proceedings having been instituted before the appropriate Assistant District Judge. 3
A.P. No. 56 of 2009 is dismissed. There will be no order as to costs.
Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) sg.