TMI Blog1997 (4) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaintiff and the first petitioner. The said lease agreements, are both annexures to the present application. 2. The arbitration clauses contained in the aforesaid lease agreements are identical and it would be convenient at this stage to set out one of the said arbitration clause (at page 72 of the petition) :-- Except where it has been provided otherwise, any dispute or difference arising out of or in connection with the agreement between the parties including any dispute or difference relating to the interpretation of the agreement or any clause thereof shall be referred to the sole arbitration of a person appointed by..... and the provisions of The Arbitration Act, 1940 and rules framed thereunder and any amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to time by mutual agreements between the parties and delivery of possession of each and every item of equipment referred to therein. It is quite obvious that the second petitioner is a necessary and proper party to this suit. 6. In resisting the present application the learned counsel appearing for the plaintiff has submitted as follows :- a) Neither the original arbitration agreement nor a duly certified copy of the same has been annexed to the present application as required under S. 8(2) of the said Act. I am not impressed by the aforesaid submission. What have been annexed to the present application are the xerox copies of the aforesaid lease agreements which also form pan of the plaint filed in this suit. Indeed the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bitration at all; iii) 'Major (Retd.) Inder Singh Rekhi v. Delhi DEvelopment Authority', . In this case the Supreme Court held that the existence of dispute is essential for appointment of an arbitrator under S. 8 or a reference under S. 20 of the 1940 Arbitration Act. It appears to me that on an application under S. 8(1) of the said Act, the Court is only concerned to sec that the matter on which a suit is institutled is also the subject of an arbitration agreerment. It is also stated in the present application that the petitioners have a substantial defence to the claim of the plaintiff in this suit..... Having regard to the aforesaid it cannot be said that the claim of the plaintiff as laid in its plaint is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In reply the learned Counsel for the petitioners relied on the following Bench decision of the Allahabad High Court :-- Union of India v. Janki Prasad Agarwal', , In this case an appeal was preferred from an order under S. 8 of the 1940 Arbitration Act, in which the following arbitration agreement came up for consideration by that Court :-- the same shall be referred to for decision to a Sole Arbitration who shall be the (left blank) or a person appointed by him in that behalf..... It was submitted on behalf of the appellant before that Court that in view of the non-mentioning of the name of the arbitrator the arbitralion clause was to be deemed in law to be non-existent. Repelling the said submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ators .. (5) failing any agreement referred to in subsection (2) in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him . Sub-section (6) of S. 11 is not relevant for the present purpose. By the said arbitration clause the parties clearly intended that the arbitrator would be appointed by an appointing authority. However, the identity such as the name or designation of the said appointing authority has been left undisclosed and as such the same is vague and uncertain. The afore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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