Law: Arbitration Act, 1940

Section: 20,5,11

Law: Civil Procedure Code (V of 1908)

Section: 11

(a) Arbitration Act (X of 1940)-------Ss. 20, 5 & 11---Civil Procedure Code (V of 1908), O.VII, R.11---Arbitration agreement---Condition in the agreement for referring the dispute to the engineer for his decision---Application for filing the arbitration agreement in Court---Scope---Allegation of bias of arbitrator---Effect---Petitioner moved petition for filing arbitration agreement in the Court wherein respondent submitted an application for rejecting the said petition on the ground that petitioner had not exhausted the precondition of referring the dispute to the engineer---Contention of petitioner was that engineer was biased and controversial---Validity---Petitioner was aware of the requirement to refer the dispute in the first instance to the engineer---Dispute was not referred to the engineer for decision under the contract---Dispute between the parties had to be referred in the first instance to the engineer who was supposed to give his decision within stipulated period---If the engineer gave his decision or did not give his decision within stipulated period then aggrieved party could refer the matter in dispute to arbitration---Right of aggrieved party to refer the dispute to arbitration was pre-conditioned with a reference of such dispute to the engineer---Application for filing the arbitration agreement in the Court without fulfillment of such condition was liable to be dismissed as premature---Court could not rewrite the agreement between the parties or exempt a party from complying with its contractual obligation of the contract---Where reference to engineer could not be made because he had resigned or refused to entertain the dispute or had been disengaged by the employer then dispute could be referred to arbitration without a reference to the engineer---Party could not bypass the requirement of a reference of dispute to an engineer on the ground of bias unless court was satisfied that substantial miscarriage of justice would take place if such an application for filing the arbitration agreement was dismissed as premature---Court must not lightly relieve the parties from their bargain---Discretion had to be exercised cautiously and parties…