Modi Korea Telecommunicaton Ltd v. Appcon Consultants Pvt.ltd

RUMA PAL, J.

(1.) This appeal involves the question of the jurisdiction of a single judge, who has been given the determination to hear and dispose of arbitration matters, to entertain applications under section 11 of the Arbitration and Conciliation Act, 1996 (hereafter referred to as the Act.)

(2.) The facts giving rise to the question are briefly stated. The respondent does the business of rendering radio paging services. It procures pagers from the manufactures and appoints distributors to sell or lease the pager units to the consumers. According to the appellant the respondent was one such distributor and that in terms of the agreements between the resondent and the appellant, the respondent was to pay lease rent to the appellant. It is the appellants case that lease rent of several lakhs of rupees fell due and payable by the respondent to the appellant.

(3.) In September 1996 the respondent filed a suit against the appellant in (T.S. No. 361 of 1996) before the Second Munsiff at Alipore praying for cancellation of the lease agreements between the respondent and the appellant.

(4.) There is an arbitration clause in the agreement between the appellant and the respondent. The appellant filed an application under section 9 of the Act in the High Court for interim relief. The interim application has been disposed of.

(5.) The appellant appointed a Senior Advocate as sole arbitrator in terms of the Arbitration Clause on 19.5.97 and called upon the respondent to concur in the appointment. The respondent refused.

(6.) In March 1998 the appellant filed an application under section 11 of the Act in which it prayed for "(a) An arbitrator be appointed by the Honble Chief Justice of this Honble Court at Calcutta in terms of the arbitration clause contained of the agreements dated 31.01.96, 28.02.96 and 30.03.96. (b) Arbitrator be directed to enter upon the reference within such time as this Honble Court may be pleased to direct and to make and publish his award also within such time as this Honble Court may deem fit and proper. (c) Such further or other order to orders be passed as to this Honble Court may deem fit and proper."

(7.) The appellant also filed an application under section 8 of the Act before the Second Munsif at Alipore in TS No. 3612 of 1992 for referring the subject matter of the suit to arbitration.

(8.) The application under section 11 was taken up for hearing. The learned Judge passed the following order on 15th July 1998 : "It appears that an application under sectiion 8 of the Arbitration and Conciliation Act, 1996 has been pending before the learned second Munsif at Alipore being T.S. No. 362 of 1996. An application has also been made before this court by the petitioner under the Arbitration and Conciliation Act, 1996 for reference of the disputes which have arisen between the parties to the Arbitrator to be appointed by the Honble Chief Justice. Having regard to the aforesaid facts and circumstances of the case, it is expected that the learned Second Munsif at Alipore shall dispose of the said application under section 8 of the Arbitration and Conciliation Act, 1996 forthwith and in any event within a period not later than four weeks from the date of communication of this order. The Registrar, Original Side of this court, is directed to communicate this order to the Registrar, Alipore Judges court 24-Parganas (south). The mater remains part heard and stands adjourned till four weeks hence."

(9.) This order has been challenged before us. The appellants short point is that adjudication of an application filed under section 11(5) of the Act cannot be made subject to disposal of an application filed by the applicant under section 8 of the Act.

(10.) The respondent has submitted that the order was not an appealable one. It has also been submitted that the court did not have the jurisdiction to entertain the application under section 11 of the Act at all as the power was solely vested in the Chief Justice.

(11.) On the question of maintainability, section 37(1) of the Act provides : (1) An appeal shall lie from the following orders (and from no others) to the court authorised by law to hear appeals from original decrees of the court passing the order, namely :-

(a) granting or refusing to grant any measure under section 9;

(b) setting aside or refusing to set aside an arbitral award under section 34."

(12.) The order under appeal does not fall either within clause (a) or clause (b) of sub-section (1) of section 37. According to the appellant the order under appeal was not an order passed under the Act and therefore was not governed by section 37(1). It is stated that the order is appealable as a "judgment" under Clause 15 of the Letters Patent.

(13.) The several decisions cited by the respondents in support of its submissioin that the order was not an appealable one did not deal with this submission of the appellant. Most of the decisions relate to section 39(1) of the Arbitration Act, 1940. Section 39(1) of the Arbitration Act, 1940 was similarly worded. It also provided that an appeal shall lie from specified orders passed under the Act (and no others).

(14.) The Supreme Court in Union of India v. Mohindra Supply Co. : AIR 1962 SC 256 [LQ/SC/1961/304] construing section 39(1) said : "Under section 39(1), an appeal lies from the orders specified in that sub-section and from no others. The legislature has plainly expressed itself that the right of appeal against orders passed under the Arbitration Act may be exercised only in respect of certain cases it would be impossible to hold that notwithstanding the express prohibition, an appeal under the Letters Patent from an order passed in appeal under sub-section 1 is incompetent Therefore, in so far as Letters Patent deal with appeals against orders passed in arbitration proceedings, they must be read subject to the provisions of section 39(1) and (2) of the Arbitration Act."

(15.) It is to be emphasised that the Supreme Court was considering appeals against orders passed under the 1940 Act.

(16.) Similarly in State of West Bengal v. Gourangalal Chatterjee : 1993(3) SCC 1 there was no dispute that the order under appeal was one passed under the 1940 Act.

(17.) Finally in the decision of the Special Bench in Union of India v. K. Satyanarayan and Co. : 1995(1) CLJ 458 the relevant question framed for decision by the Special Bench was : "Does an appeal lie from an order passed under the Arbitration Act, in case not covered by section 39(1) of the said Act, under Clause 15 of the Letters Patent where no question of jurisdiction involved "

(18.) In answering that question the Special Bench relying primarily on Union of India v. Mohindra Supply Co. (supra) held :

"The Arbitration Act, 1940 having laid down as to which orders would be appealable in terms of sub-section (1) of section 39 of the Act, no appeal under Clause 15 of the Letters Patent of this court would lie which does not come within the purview of the clauses (i) to (iv) thereof."

(19.) In the context of the question framed it appears that the Special Bench did not hold that where a question of jurisdiction is involved, an appeal under Clause 15 of the Letters Patent would not lie.

(20.) Significantly the Special Bench drew a distinction between those orders which were under the Act and those that were not. It noted and did not overrule the decision in Tobu Enterprises Pvt. Ltd. v. Campco Industries Limited : AIR 1984 Cal 24 [LQ/CalHC/1983/87] where it was held that when the order was not an order under the Arbitration Act, the question of its appealability could only be considered in the context of Clause 15 of the Letters Patent. The Special Bench also distinguished but did not hold that the Division Bench decision in M/s. Unique Construction Co. (Pvt.) Ltd. v. Union of North Bengal Universities : 1986(2) CHN 275 when it was said that as the order under appeal was not an order under the Arbitration Act an appeal could be entertained therefrom if it satisfies the test of "judgment" within the meaning of Clause 15 of the Letters Patent, was bad law.

(21.) In the fourth decision cited by the respondent viz. Surekha Steel Limited v. Union of India : 1998 (1) CHN 13, the Division Bench of this court applied the reasoning of the decisions on section 39(1) of the 1940 Act to section 37 of the 1996 Act and held that an appeal did not lie under Clause 15 of the Letters Patent because :

"The impugned order is one which has been passed under the Arbitration Act which is a self contained Code as regards Arbitration and section 37 which clearly excludes an appeal from an order of a court not specified in sub-section (1) of seciton 37 of the Act." (Emphasis supplied).

(22.) The Division Bench failed to notice the latest decision of the Supreme Court in Vanita M. Khanolkar v. Pragana M. Pai : AIR 1998 SC 424 [LQ/SC/1997/1579] on section 6 of the Specific Relief Act. The section specifically bars appeals from orders passed under the section. Despite this the Supreme Court said no statutory provision can cut across the constitutional powers of the High Court to entertain an appeal under the Letters Patent unless the statutory enactment expressly excluded appeals under the Letters Patent. There are no such express words of exclusion in section 37 of the 1996 Act.

(23.) However it is unecessary for the purposes of this appeal to expressly dissent from the view taken in Surekha Steel Limited (supra) as we are of the view that even otherwise the order is an appealable one under clause 15 of the Letters Patent.

(24.) The appellant in this case has relied on the provisions of section 11(5) and section 8(3) of the 1996 Act to contend that the order under appeal was not an order under the Act at all. To appreciate this submission the provisions of the two sections must be considered.

(25.) Section 11 deals with the appointment of arbitrators. Sub-sections (1) to (4) deal with the appointment by agreement of parties. Sub-section (5) provides :

"(5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thrity 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."

(26.) Analysed, this sub-section states that if the pre-conditions are satisfied the appointment shall be made upon the request of a party. No other consideration can come into play before the appointment is made.

(27.) The intention of the Act is to facilitate the prompt resolution of disputes by recourse to arbitration.To render this effective, interference by the court is designedly kept to a minimum. Even the issue of the existence of the arbitration agreement is now brought under the competence of the arbitrator under section 16 of the 1996 Act. Primacy has been given, as it were, to resolution of disputes by arbitration without resort to courts. This intention is expressed unequivocally in section 5 of the Act which provides :

"5. Extent of judicial intervention : Notwithstanding anything contained in any other law for the time being in force, in matters governed by this part, no judicial authority shall intervene except where so provided in this part."

(28.) This makes it clear that the court is confined to the statutory provisions. It is restricted from exercising its powers otherwise.

(29.) As held by the Division Bench of the Delhi High Court in Delhi Development Authority v. Alkaram : AIR 1982 Del 365 [LQ/DelHC/1982/54] (DB) the competence of courts is restricted in order not to make the arbitration process the beginning of litigation instead of its end. In other words, the arbitration process must commence and proceed without control by the courts except to the limited extent provided in the statute. This is reinforced by section 8 of the Act which deals with the powers of the courts to refer parties to arbitration where there is an arbitration agreement. It reads as follows : "8. Power to refer parties to arbitration where there is an arbitration agreement.-(1) A judicial authority before which an action is brought in a matter which is the suject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made."

(30.) The corresponding provisions in the 1940 Act was section 34. Whereas under section 34 of the 1940 Act the court had the discretion to decide whether or not to refer the parties to arbitration even if the suit was in respect of matters covered by the arbitration agreement, under section 8(1) of the 1996 Act the court is bound to refer the parties to arbitration.

(31.) The use of the word "may" in section 8(3) allows for arbitration proceedings to continue despite the fact that a suit may be pending on the same issue. This may be contrasted with section 35 of the 1940 Act under which the arbitration proceeding could not continue validly unless the suit was stayed. Section 8(3) read with the mandatory "shall" in section 11(5) and the restriction placed by section 5 show that even when a suit is pending on the subject matter of the agreement and an application under section 8(1) has been made for reference of the dispute to arbitration, the court before which an application is made for appointment of an arbitrator under section 11 must proposed to decide the same. The fact that an application has been filed under section 8(1), has by statute and for the purpose of section 11, been made an immaterial consideration.

(32.) The learned single judge therefore could not have adjourned the section 11, application for appointment of an Arbitrator because of the pendency of the application under section 8(1) and make the exercise of power under section 11(5) dependent upon the disposal of the application under section 8(1) by the Munsif.

(33.) In making the appellants right to have an arbitrator appointed in terms of section 11(5) subject to the outcome of the application under section 8(1), the learned judge has acted in a manner which is not envisaged under the 1996 Act. The order is not one which is referable to section 11(5) or any other provision of the Act.

(34.) Clause 15 of the Letters Patent confers on the litigant a right to prefer an appeal against any judgment. As far as orders under Act are concerned, Clause 15 would be subject to section 37(1), as has been held by the several decisions noted above. Where the order is not under the Act the special power and jurisdiction of the High Court under Clause 15 to entertain an appeal from any judgment would be effective.

(35.) The observation by Fazal Ali J. in Shah Babulal Khimji v. Jayaben D. Kania and Anr. : AIR 1981 SC 1786 [LQ/SC/1981/332] namely "Special Acts which could and did confer additional jurisdiction even in internal appeals to the High Court, viz., from an order passed by a trial Judge to a larger Bench, for instance, section 39 of the Arbitration Act." in my view refers to such orders.

(36.) The next question which needs determination is whether the order can be said to be a "judgment" within the meaning of Clause 15.

(37.) The Supreme Court in Khimjis case deprecated the very narrow veiw on this point taken by a Division Bench of the Calcutta High Court in the case of Justice of the Peace for Calcutta (1872-80 Beng LR 433) (supra) where Sir Couch, C.J. on an interpretation of C1ause 15 of the Letters Patent observed thus : "We think that "judgment" in Clause. 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final, or preliminary or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutoy judgment determines only a part of it, leaving other matters to be determined."

(38.) The Supreme Court said that "a court is not justified in interpreting a legal term which amounts to a complete distortion of the word judgment so as to deny appeals even against unjust orders to litigants having genuine grievances so as to make them scapegoats in the garb of protecting vexatious appeals. In such cases, a just balance must be struck so as to advance the object of the statue and give the desired relief to the litigants, if possible".

(39.) In the case before us the object of the statute to expedite the arbitral process has in fact been defeated by deferring the decision under section 11 till the Munsif dealt with the application under section 8(1).

(40.) It has also been held that where a question of jurisdiction of the court to entertain or proceed with a suit or proceeding is involved and a decision on that question is given, such decision is a "judgment" within meaning of Clause 15, Letters Patent (Cal.) and is appealable.

(41.) This was the view of a Division Bench in Rawatmal Bhairudan v. The Rajputana Trading Co. (Pvt.) Ltd. : AIR 1973 Cal. 248 [LQ/CalHC/1971/248] where it was held an order involving a jurisdictional question is appealable as a judgment under Clause 15 of the Letters Patent.

(42.) Similarly in Tin and Allied Products Ltd. v. G. Bohlar and Co. : 75 CalWN 416 an order was passed granting leave to a plaintiff to withdraw his suit with liberty to file a fresh suit in the same cause subject to payment of costs by the plaintiff. On a subsequent application by the plaintiff for variation of this order to delete the clause relating to costs the learned judge directed the deletion. The defendant appealed contending that the court did not have the jurisdiction to recall the order as the order had been drawn up. The plaintiff contended that the appeal was not maintainable as the order did not affect the merits of any question between the parties. The appeal was held to be maintainable by the Division Bench on the ground that the order involved a question of jurisdicition.

(43.) In Central Bank of India Ltd. v. S.B. Hosiery Mills Ltd. : 70 CalWN 670 the Bank had filed a suit against its constituent in Bhagalpur. The suit was decreed. The constituent appealed. While the Bank suit was pending the constituent filed a suit in Calcutta. The bank made an application to the Patna High Court for amendment of its written statement by including a prayer for res-judicata. It also prayed for postponement of the Calcutta suit until the decision of the appeal. The application was dismissed. The court allowed the appeal of the bank. It was held that by disallowing the plea. for res judicata there was a final decision affecting the merits of Calcutta suit. As far as the prayer for adjournment was concerned the Division Bench said :

"The mere order for adjournment of a case is certainly not a judgment within the meaning of clause 15 of the Letters Patent. But in this case, I shall presently point out that the relief is intimately connected with the plea of res judicata. Therefore, where such a plea is inter-mixed with the question of jurisdiction so that they cannot be separated, it will come within the scope of clause 15 of the Letters Patent. This has been pointed out in a case cited by Mr. Ghose himself (4) Daulatram Agarwalla v. Champalal Jugraj, AIR 1963 Cal. 337 [LQ/CalHC/1961/264] . Bose, C.J., held that where the question of procedure and the question of jurisdiction are so mixed up that one cannot be disassociated from the other, an order dealing with such question of procedure and jurisdictiion is an appealable order, being a judgment within the meaning of clause 15 of the Letters Patent."

(44.) The observations are applicable to the order under appeal. The court did not merely adjourn the hearing. The question of adjournment was inter-mixed with a question of the courts jurisdiction to entertain and dispose of an application under section 11. The submission of the respondent that the matter was directed to be listed after 4 weeks and therefore there was no final decision on the issue is unacceptable. If the court has once granted an adjournment for the purpose of enabling the Munsiff to determine the application under section 8(1), there could be no reason to expect that the same court would hear the application under section 11, 4 weeks later, if the application under section 8(1) were still pending disposal before the Munsif. Incidentally, the application under section 8(1) is still pending before the Munsiff at Alipore and the application under section 11 has been directed to go out of the list.

(45.) The contention of the appellant before us is that the learned Judge did not have the jurisdiction to adjourn the application under section 11 only on the ground that an application under section 8(1) of the Act is pending. And according to the counsel for the respondents, the learned single Judge could not have entertained or determined the application under section 11 at all. In the circumstances since the order under appeal was not one under the 1996 Act and since it involved a question of jurisdiction, it must be held on the basis of the authorities cited that the order is an appealable one under clause 15 of the Letters Patent.

(46.) But did the court have the jurisdiction to hear the application under section 11 at all The unreported decision of a learned single Judge in Harihar Yadav v. Durgapur Projects Limited (AP No. 514 of 1998 : Judgment dated 1st September, 1998) has construed the provisions of section 11 and held that the power of apointment of an arbitrator was conferred by section 11(5) on the Chief Justice or any person or institute designated by him for this purpose. The learned judge accepted the submission that the process of appointing an arbitrator involved consideration of two components; (1) a consideration whether in the facts and circumstances of the case the arbitrator in fact is required to be appointed and (2) the naming of the arbitrator. It was held that as the Chief Justice had not designated the learned judge to name the arbitrator, the court did not have jurisdiction to consider and dispose of the first component. According to the learned judge, the two components leading to the exercise of power of appointing the arbitrator have to be gone into by the Chief Justice alone and that if the court had no power to appoint an arbitrator because it had not been designated to do so, it had no power also to consider any issue relevant to the appointment of an arbitrator under section 11.

(47.) The view, as above, of the learned single judge does not commend itself for our acceptance and we accordingly, express our dissent for the reasons hereafter stated.

(48.) Sectiion 11 makes a distinction between the procedure for appointment of an arbitrator and the actual appointment of the arbitrator. Under section 11(2) parties can agree on the procedure for appointing the arbitrator. If there is no such agreement on the procedure, section 11(3) prescribes the procedure to be followed. When the arbitration is to be of three arbitrators, section 11(3) provides that "each party shall appoint one arbitrator and the two appointed arbitrators shall appoint a third arbitrator who shall act as the presiding arbitrator". If a party fails to appoint an arbitrator within 30 days from the receipt of request to do so from the other party or two appointed arbitrators fail to agree on the third arbitrator within 30 days from the date of their appointment, "the appointment shall be made, upon request of a party, by the Chief Justice or any person or institute designated by him under sub-section (4) of section 11".

(49.) Section 11(5) similarly provides that in the case of the arbitration with a sole arbitrator if the parties fail to agree on the arbitrator within 30 days from the receipt of the request by one party from the other to do so, the appointment shall be made, upon request of a party by the Chief Justice or any person or institute designated by him. Section 11(6) deals with a situtation where the appointment procedure has been agreed upon but there is non compliance of the agreed procedure. In this case also any party may request "the Chief Justice or any person or institute designated by him" to take the necessary measures unless the agreement on the appointment provides other means for securing the appointment.

(50.) A decision on the matter entrusted by sub-sections (4), (5) and (6) to the Chief Justice or any person or institute designated by him is final by virtue of section 11(7). Section 11(8) provides for considerations to which regard should be had before such power of appointment is exercised. Section 11(9) deals with International Commercial Arbitrations where the Chief Justice of India or any person or institute designated by him is given the powers of appointment. Section 11(11) deals with a situation where several requests are made to the Chief Justices of different High Courts or their designates. Section 11(12) (a) extends the operation of sub-sections (4), (5), (6), (7), (8) and (10) to international commercial arbitrations giving power of appointment to the Chief Justice of India in place of Chief Justice of the High Court. Section 11(12) (b) clarifies that the reference to Chief Justice means the Chief Justice of the appropriate High Court.

(51.) What does "appointment" mean is it only limited to naming or does it include the adjudicatory process as to whether appointment should be made

(52.) It is clear from a reading of section 11 that the word "appoint" has been used in section 11 to mean nomination or designation. Thus parties may appoint or name their arbitrator under section 11(2), (3) and (4). The parties do not, in appointing an arbitrator, do more than name or designate him.

(53.) The power which has been conferred exclusively under section 11 on the Chief Justice is the power of appointment or the power to name an arbitrator. The Chief Justice may, if he so chooses, designate some other person or institute to exercise this power.

(54.) This power is to be distinguished from the general power of a court to determine whether the pre-conditions for the exercise of that power have been fulfilled. This is a judicial act. The bifurcation between the two powers has been recognized in the unreported decision of Harihar Yadav v. Durgapur Projects Ltd. (supra) when it was said :

"Undoubtedly the appointment of an arbitrator, on an application made by one of the parties involves a decision making process comprising the twin vital components and elements of consideration with regard to the points in issue, or the points of controversy between the parties and the actual act of appointment of the arbitrator. The act of actual appointment of an arbitrator has always to be preceded by a consideration as to whether in the facts and circumstances of the case the arbitrator in fact is required to be appointed or not. It is not only after this issue is resolved that the qestion of appointment of an arbitrator arises."

(55.) Given the definition of the word appointment, in our view section 11 does not say that the Chief Justice could alone exercise the general power of judicially determining whether the pre-conditions for such appointment have been furfilled. To hold otherwise would, not only be contrary to the express language of the section, but it would also mean that the Chief Justice could by designation clothe any person or institution with the power to discharge judicial functions.

(56.) Besides the legislature could not have intended to burden either the Chief Justice of India (in connection with all international arbitrators) or the Chief Justice of a High Court (in connection with all domestic arbitrations) to be saddled with the impracticable task of determining the existence of the preconditions for appointment of an arbitrator/arbitrators in all cases nor to empower the Chief Justice with the power to clothe any person or authority of his choice with the discharge of judicial functions exercisable by courts. In facts section 11 does not say anything on the matter.

(57.) In our view such judicial determination is to be exercised only by a court. A court has been defined in seciton 2(e) of the Act as: "(e) Court means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary Civil jurisdiction, having jurisdiction to decide the question forming the subject-matter of the reference if the same had been the subject matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes."

(58.) Chapter V Rule 1 of the Original Side Rules of this court sets the limits for the exercise of original jurisdiction in the following manner :

"1. Any Judge of the High Court may, subject to any rules of court, exercise, in court or in Chambers, all or any part of the jurisdiction vested in the High Court on its original side."

(59.) The rules of the court have provided for a limitation on the power of judges to the extent determined by the Chief Justice of the High Court. Historically, the power of the Chief Justice of a High Court is derived from the Act establishing High Courts, 1861 (24 and 25 VICT., CAP. 104.) which was enacted for establishing High Courts of Judicature in India. Section 14 of the Act provided :

"14. The Chief Justice of each High Court shall from time to time determine what Judges in each case shall sit alone, and what Judges of the court, whether with or without the Chief Justice, shall constitute the several Division Courts as aforesaid."

(60.) Clause 36 of the Letters Patent, 1865 continued this power of the Chief Justice of the High Court in Bengal.

(61.) The Government of India Act, 1915 then provided :

"108. Exercise of jurisdiction by single judges or Division Courts.-(1) Each High Court may by its own rules provide, as it thinks fit, for the exercise, by one or more judges, or by division courts constitute by two or more judges, of the high court, of the original or appellate jurisdiction vested in the court. (2) The chief justice of each High Court shall determine what judge in each case is to sit alone, and what judges of the court, whether with or without the Chief Justice, are to constitute the several Division Courts."

(62.) Clause 36 of the Letters Patent was accordingly amended by the Letters Patent of 11th March, 1919 to incorporate a reference to section 108 of the Government of India Act,1951.

(63.) This power, which was preserved under Article 225 of the Constitution of India, has been construed in Sohanlal Baid v. State of West Bengal (See : AIR 1990 Cal 168 [LQ/CalHC/1989/489] (170 to 174 (DB) : (1989) 2 Cal HN 474).

"The function of assignment of judicial business amongst the judges of the High Court, whether sitting single or in Division Courts, is entrusted by law to the Chief Justice and the Judge or Judges derives its power to hear specified classes of cases only from the allocation of business among Judges made by the Chief Justice. Thus cases not covered by such allocation cannot be heard by Judge sitting singly or in Division Courts."

(64.) Pursuant to this power the Chief Justice has allocated the business of hearing matters pertaining to arbitrations to a learned single Judge. It is for that learned single Judge to exercise the general power referred to earlier, leaving the power of naming the arbitrator under section 11 to the exclusive jurisdiction of the Chief Justice.

(65.) For the reasons stated we hold that the learned single Judge has the power to entertain the application under section 11 to determine whether the arbitrator should be appointed in terms of section 11 and thereafter placing the matter before the Chief Justice to name the arbitrator if the question is decided in favour of the applicant.

(66.) We also hold that the learned Judge must confine himself to section 11 only in deciding the application. We accordingly allow the appeal and set aside the order dated 15th July 1998 and remand the matter back to the learned single Judge for the purpose of deciding whether an arbitrator should be appointed in terms of section 11 without reference to the application under section 8(1) before the Munsiff. Costs will be costs in the cause.

H.M.S. Ansari J. -

I agree. Appeal allowed.